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No. 95-4190

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United States of America, *

 *

Appellee, *

 * Appeal from the United States

v. * District Court for the

 * Eastern District of Arkansas.

Peter Makras, * [UNPUBLISHED]

 *

Appellant. *

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 Submitted: September 3, 1996

 Filed: September 23, 1996

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Before McMILLIAN, WOLLMAN, and MURPHY, Circuit Judges.

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PER CURIAM.

Peter Makras appeals the sentence the district court imposed after

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 vacate

Makras's sentence and remand for resentencing.

Makras's plea agreement contained a provision committing the

government to recommend that Makras receive a sentence of eight years, or

twenty-four months less than the applicable Guidelines sentence, whichever

was lower. At sentencing, the district court determined that the

Guidelines range was 87 to 108 months, subject to a mandatory minimum

sentence of 120 months. The government, however, conceded that Makras

qualified for a sentence below the mandatory-minimum and within the

Guidelines range, under U.S.S.G. § 5C1.2 (permitting court to sentence

within Guidelines range without regard to statutory minimum), and moved for

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 district 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 doubt

including the 24 months. I was seriously

considering giving him halfway in between and then

reducing it the 24 months, but it came out about

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 him about 48 months, if my

calculations are correct, off of what I would

normally do. I usually give, 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 should 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 sentenced

Makras below the mandatory minimum pursuant to section 5C1.2. Absent the

government's substantial-assistance motion, the district court then would

have imposed a sentence within the Guidelines range. See United States v.

Collins, 66 F.3d 984, 987-88 (8th Cir. 1995) (per curiam) (§ 5C1.2 does not

permit court to depart below applicable Guidelines range); United States

v. Stockdall, 45 F.3d 1257, 1259 (8th Cir. 1995) (court may not grant

substantial-assistance departure absent government motion). Our review of

the record convinces us that the court indicated a willingness and intent

to effect the government's recommendation--to impose a sentence below the

Guidelines range--when it expressed its understanding of the plea agreement

at the plea hearing and
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granted the government'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 may

depart from the guidelines.") (emphasis added). Thus, the court's

statements appear inconsistent with the court's intention. Cf. United

States v. Harris, 70 F.3d 1001, 1002-03 (8th Cir. 1995) (once court

accepted plea agreement, parties had "reasonable expectation" that court

would sentence within appropriate Guidelines range). We therefore vacate

Makras's sentence and remand for resentencing consistent with this opinion

and the plea agreement.

A true copy.

Attest:

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