___________ No. 95-4190

___________ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * Eastern District of Arkansas. Peter Makras, * [UNPUBLISHED] * Appellant. *

___________ Submitted: September 3, 1996 Filed: September 23, 1996

___________ Before McMILLIAN, WOLLMAN, and MURPHY, Circuit Judges.

___________ PER CURIAM.

Peter Makras appeals the sentence the district court imposed afte r he pleaded guilty to conspiring to possess methamphetamine with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 846. We vacat e Makras's sentence and remand for resentencing.

Makra s's plea agreement contained a provision committing th e government to recomme nd that Makras receive a sentence of eight years, or twenty-four months less than the applicable Guid elines sentence, whichever
was l ower. At sentencing, the district court determined that th e Guidelines range was 87 to 108 months, subject to a mandatory minimum sentence of 120 months. The government, however, conceded that Makra s qualif iedfor a sentence below the mandatory-minimum and within th e Guidel ines range, under U.S.S.G. § 5C1.2 (permitting court to sentenc e within Guidelines range without regard to statutory minimum), and moved fo r a downward departure under U.S.S.G. § 5K1.1 (substantial assistance). In compliance with the plea agreement, the government recommended a

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sentence of eight years or twenty-four months less than the sentence the court intended to impose within the Guidelines range.

The d istrict court granted the government's motion, stated, "[a] t this point, we're at a guideline range of 87 to 108 months," and sentenced Makras to 87 months imprisonment. The court said,

I was giving [Makras] every benefit of the doub t inclu ding the 24 months. I was seriousl y considering giving him halfway in between and then reducing it the 24 months, but it came out abou t the same thing.
So that's the way, so the record is clear, I arrived at -- I decided to get him the benefit of - - in other words, I gave hi m about 48 months, if my ca lculations are correct, off of what I woul d normally do. I usually giv e, just a rule of thumb, in the middle of the guideline range.

Makras moved for reconsideration, contending that he did not receive the benefit of the plea agreement, and that he shoul d have received a 63-month sentence. The district court denied his motion, and Makras appeals.
Implicit in the sentence imposed is that the district court sen tenced Makras below the mand atory minimum pursuant to section 5C1.2. Absent the government's substant ial-assistance motion, the district court then would have imposed a sentence within the Guidelines ra nge. See United States v. Collins , 66 F.3d 984, 987-88 (8th Cir. 1995) (per curiam) (§ 5C1.2 does no t permit court to depart below applicable Guidelines range); United States
v. Stockdall , 45 F.3d 1257, 1259 (8th Cir. 1995) (court may not gran t substantial-assistance departure absent governme nt motion). Our review of the record convinces us that the court indicated a willingness and intent to effect the governm ent's recommendation--to impose a sentence below the Guidelines range--when it expressed its understanding of the plea agreemen t at the plea hearing and

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granted the governmen t's section 5K1.1 motion at sentencing. By imposing a sentence within the Guidelines range, however, the court, by definition, did not depart. See U.S.S.G. § 5K1.1 ("Upon motion . . . the court ma y depart from

the guidelines.") (emphasis added). Thus, the court' s statem ents appear inconsistent with the court's intention. Cf. Unite d States v. Harris , 70 F.3d 1001, 1002-03 (8th Cir. 1995) (once cour t acceptedplea agreement, parties had "reasonable expectation" that court would sentence withinappropriate Guidelines range). We therefore vacate Makras's sentence and remand for resentencing co nsistent with this opinion and the plea agreement.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.