1 The Honorable John A. Jarvey, United St ates District Judge for the Southern District of Iowa. 

## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 07-3578

___________ United States of America, *
* Plaintiff - Appellee, * * Appeal from the United States v. * District Court for the * Southern District of Iowa. Edward Keith Dembry, also known as * Edward Keith, also known as Edward * Wilson, *
* Defendant - Appellant. *

___________ Submitted: June 10, 2008 Filed: July 28, 2008

___________ Before MURPHY, BYE, and SHEPHERD, Circuit Judges.

___________ MURPHY, Circuit Judge. Edward Dembry was found guilty of bei ng a felon in possession of ammunition in violation of 18 U.S.C. § 922(g)(1). Th e district court sentenced him under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), to 265 months imprisonment. He now appeals, challe nging a pretrial suppression ruling by the district court 1 and the reasonableness of his sentence. We affirm.-2- I.

On the night of August 27, 2006, O fficer Doug Roling and Sergeant Douglas Carden of the Coralville, Iowa Police Department were conducti ng a foot patrol of apartment buildings where there had been an increase in drug activity and violence. As the officers were standing outside one, Officer Roling saw a bl ack male leave the building, make eye contact withthe officers, and run back inside. The black male was later identified as Edward Dembry. Roli ng followed in pursuit and saw Dembry reach behind his back when he was halfway up aninterior stairway and pull a handgun from under his shirt. The chase continued up the rest of the stairwell and onto a landing where Roling saw Dembry make a motion to wards a nearby wooden locker and heard a sound like metal striking wood. Dembry th en walked back towards Roling with his hands raised.

Sergeant Carden caught up with them, and Roling asked him to watch Dembry while he inspected the lockers. In one of them Roling found a .40 caliber semiautomatic handgun. Sergeant Carden placed Dembry under arrest and searched him. He found a loaded .40 caliber magazine inDembry’s front pocket. A subsequent consensual search of Dembry’s apartmen t uncovered a box of . 40 caliber ammunition, a .40 caliber magazine, and a holster.

Dembry was indicted for being a fe lon in possession of a firearm and ammunition in violation of 18 U.S.C. §§ 922( g)(1) and 924(e). The indictment also sought criminal forfeiture of the firearm and ammunition connected to his arrest, pursuant to 18 U.S.C. § 924(d) and 28 U.S.C . § 2461(c). A forfeiture order was later entered by the court. Demb ry moved to suppress the firearm and ammunition because of insufficient probable cause for his arrest in violation of the Fourth Amendment. A magistrate judge conducted an evidentiary hearing and issued a recommendation that the motion be denied. Over Dembry’s obj ection, the district court adopted the recommendation and denied the motion to suppre ss. Prior to this ruling Dembry filed-3- a motion to suppress incriminating statements he made after his arrest. Following a hearing the district court denied the sec ond motion, and the case proceeded to trial.

At trial Dembry moved for judgment of acquittal at the close of the government’s case. After the motion was denied, Dembry chose not to present any evidence and the case was submitted to the jury. Following half an hour of deliberation the jury unanimously found Dembry guilty of possessing ammunition but not of possessing the firearm found by Officer Roling.

At sentencing Dembry argued that he should not be sentenced under the ACCA because his drunk driving convictions should not count as predicate violent offenses and one of his three robbery convictions had not been counseled. The government introduced evidence establishing that De mbry had been represented during that robbery prosecution, however. The district court determined that his three prior robbery convictions and two prior felony drunk driving convicti ons all qualified as violent felonies under the ACCA and that18 U.S.C. § 924(e) required a mandatory minimum sentence of fifteen years. Arme d career criminal status also elevated Dembry’s advisory guideline offense level to 33 and his criminal history category to VI consistent with United States Senten cing Guidelines Manual (U.S.S.G.) § 4B1.4. The resulting advisory guideline range was 235-293 months.

Dembry requested a variance from the guideline range based on the factors listed in 18 U.S.C. § 3553(a). The district court indicated that it might have varied from the sentencing guidelines had the r obberies Dembry committed at age eighteen been the only blemishes on his record, but it declined to do so in light of numerous subsequent convictions. After taking the § 3553(a) factors into account, the court determined that a sentence within the a dvisory guideline range was appropriate and sentenced him to 265 months.-4- II.

Dembry appeals. He argues that the di strict court erred in denying his motion to suppress evidence obtained through an ille gal search. Additionally, he argues that his classification as an armed career crimin al with its sentencing consequences under U.S.S.G. § 4B1.4 is unreasonable. While a district court’s denial of a motion to suppress is reviewed de novo , the court’s underlying factual findings are reviewed for clear error, affording “due weight to the inferences of the district court and law enforcement officials.” United States v. Anderson , 339 F.3d 720, 723 (8th Cir. 2003)(quoting United States v. Replogle , 301 F.3d 937, 938 (8th Cir. 2002)).

Dembry argues that it was clear error fo r the district court to adopt the fact findings of the magistrate judge and to accept Officer Roling’s testimony that he saw Dembry remove a firearm from his clothing. Dembry contends that probable cause for his arrest was complete ly dependent upon Officer Ro ling’s observations and his inconsistent testimony, and that the districtcourt erred in relyi ng on it to find probable cause and deny the motion to suppress. Demb ry also suggests that the lack of a guilty verdict for possessing the firearm should infl uence this court’s assessment of whether there was probable cause and whether the distri ct court erred in its pretrial rulings.

An officer has probable cause to make a warrantless arrest when circumstances would lead a reasonable person to believe a defendant has committed or is in the midst of committing an offense. SeeUnited States v. Torres-Lona , 491 F.3d 750, 755-56 (8th Cir. 2007) (citing Beck v. Ohio , 379 U.S. 89, 91 (1964)). In this case officers observed Dembry running away from them in an area known for criminal activity. The district court accepted Officer Roling’s testimony that he saw Dembry with a gun and his attempt to dispose of it. Th e evidence supports the findings, and the credibility determinations of the districtcourt are entitled to deference. SeeUnited States v. Guel-Contreras , 468 F.3d 517, 521 (8th Cir. 2006) (holding that credibility determinations are “virtually unassaila ble on appeal”)(quoting United States v.-5- Rodriguez , 414 F.3d 837, 845 (8th Cir. 2005)). In light of the circumstances surrounding their interaction with Dembry, it was reasonable for Officer Roling and Sergeant Carden to believe he was committing a crime and there was thus probable cause to arrest and search him.

The fact that the jury did not find De mbry guilty of possessing the firearm does not invalidate the district court’s pretrial findings of probable cause and admissibility. See United States v. Mendoza , 421 F.3d 663, 667 (8th Cir. 2005) (holding that “police need not have amassed enough evidence to justify a conviction prior to making a warrantless arrest”). The preponderance of evidence standard for pretrial rulings is lower than the reasonable doubt standard re quired for a jury to convict. We find no clear error in the district c ourt’s determination that ther e was probable cause or in its denial of Dembry’s motion to suppress.

Dembry also challenges his 265 month sent ence, arguing that application of the ACCA with its consequences overstated the seriousness of his criminal history. He contends correctly that drunk driving felonies do not count as predicate offenses under the ACCA since the Supreme Court’s decision in Begay v. United States ,128 S. Ct. 1581 (2008), and he argues that the c ourt should have varied downward in consideration of the § 3553(a) factors and b ecause his three robbery offenses occurred in 1981 when he was only eighteen years old. SeeUnited States v. Boss , 493 F.3d 986, 987 (8th Cir. 2007) (holding that a district court abuses its sentencing discretion if it fails to consider a relevant factor that should have received significant weight). Reasonableness of a sentence is reviewed fo r abuse of discretion. United States v. Bonahoom , 484 F.3d 1003, 1005 (8th Cir. 2007). Because Dembry’s sentence was within the advisory guideline range of 235- 293 months it is presumptively reasonable. See United States v. Lincoln , 413 F.3d 716, 717 (8th Cir. 2005).

While the district court relied on circ uit precedent in treating Dembry’s drunk driving convictions as violent felonies fo r ACCA purposes, that has been shown to be-6- error by the intervening Supr eme Court decision in Begay . 128 S. Ct. at 1583. There, the Court held that felony drunk driving offenses are not violent felonies within the meaning of 18 U.S.C. § 924(e)(1). Id. Dembry nonetheless qualifies as an armed career criminal because his three robbery convictions still qualify as predicate violent felonies (one was for armed robbery). See18 U.S.C. § 924(e) (listing burglary, arson, extortion, or use of explosives as violent felonies and otherwise classifying a violent felony as one that is punishable by impris onment for a term exceeding one year and has an element of use, attempted use, or threatened use of physi cal force against the person of another).

Dembry does not contend th at he did not qualify as an armed career criminal, but instead argues he is entitled to a downward variance because the remaining predicate felonies were all committed at age eighteen making punishment under the ACCA and U.S.S.G. § 4B1.4 unreasonably harsh for him. The district court disagreed, concluding armed career criminal status did not overstate Dembry’s criminal history since he had “as long of a criminal history as I have seen,” with numerous convictions coming after his predi cate offenses. The court also observed that Dembry displayed no remorse for wh at he had done. Before finding that a sentence in the middle of the advisory guideline range was reasonable under the circumstances, the court expressly addressed each of the § 3553(a) factors. We conclude that his sentence was reasonable under all the circumstances.

For these reasons we affirm the judgment of the district court.

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