                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 01-3516
                                   ___________

United States of America,               *
                                        *
             Appellant,                 *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Western District of Missouri.
Matthew M. Stone,                       *
                                        *       [UNPUBLISHED]
             Appellee.                  *
                                   ___________

                             Submitted: June 13, 2002

                                  Filed: June 24, 2002
                                   ___________

Before RILEY, BEAM, and MELLOY, Circuit Judges.
                           ___________

PER CURIAM.

       Matthew Stone (Stone) pled guilty to conspiracy to manufacture
methamphetamine in violation of 21 U.S.C. § 841. The presentence report (PSR)
assigned Stone four criminal history points under U.S.S.G. § 4A1.1 resulting in a
criminal history category of III, but the district court departed downward under
U.S.S.G. § 4A1.3 to a criminal history category of I, finding category III overstated
the seriousness of Stone's past criminal conduct. Although Stone's sentencing range
was then 87-108 months, the amount of drugs involved triggered a statutory
mandatory minimum sentence of ten years imprisonment. See § 841(b)(1).
       At sentencing, Stone argued, and the district court agreed, that he was eligible
for relief under the "safety valve," U.S.S.G. § 5C1.2, which requires a district court
to sentence a defendant within the applicable guidelines range regardless of any
statutory minimum sentence if, among other things, "the defendant does not have
more than 1 criminal history point, as determined under the sentencing guidelines."
U.S.S.G. § 5C1.2(a)(1). The district court decided that given its downward departure
to criminal history category I under § 4A1.3, it could apply the safety valve in §
5C1.2. Additionally, the district court stated that because Stone's co-conspirators had
received lesser sentences than Stone due to the government's filing of substantial
assistance motions, Stone should receive some parity. The government appeals.

       The district court's reduction of Stone's criminal history category under § 4A1.3
does not delete criminal history points for the purposes of the safety valve. See
United States v. Webb, 218 F.3d 877, 881 (8th Cir. 2000). Because Stone was
properly charged with four criminal history points under § 4A1.1, he does not qualify
for the safety valve reduction under § 5C1.2. United States v. Langmade, 236 F.3d
931, 932 (8th Cir. 2001); Webb, 218 F.3d at 882; see also United States v. Heilmann,
235 F.3d 1146, 1148 (8th Cir. 2001). Furthermore, the disparity between the
sentences of Stone and his co-conspirators is not a legitimate reason for the change
in sentence. See United States v. Buckendahl, 251 F.3d 753, 759 (8th Cir. 2001)
(Disparities in sentences among codefendants resulting from a routine exercise of
prosecutorial discretion are generally unsuitable for departure.)

       Stone asks the court to reexamine its earlier opinions of Langmade, 236 F.3d
at 932 and Webb, 218 F.3d at 881-82. Since one panel cannot overturn the precedent
established by the decisions of other panels, we reverse and remand for resentencing
consistent with the precedent of this circuit.




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A true copy.

      Attest:

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




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