                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 00-1669
                                    ___________

United States of America,                *
                                         *
             Appellant,                  *
                                         * Appeal from the United States
      v.                                 * District Court for the District
                                         * of Minnesota.
Michael O. Heilmann,                     *
                                         *
             Appellee.                   *
                                    ___________

                            Submitted: November 15, 2000

                                Filed: January 3, 2001
                                    ___________

Before LOKEN, LAY, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
                           ___________

MORRIS SHEPPARD ARNOLD, Circuit Judge.

       The government appeals the district court's departure below the applicable
guidelines range. We vacate the sentence and remand the case for further proceedings.

       Pursuant to a written plea agreement in which the government agreed to dismiss
an indictment charging him with possession with intent to distribute methamphetamine,
see 21 U.S.C. § 841(a)(1), Michael Heilmann pleaded guilty to a charge of traveling
interstate to promote and facilitate the commission of felony drug offenses, see 18
U.S.C. § 1952(a)(3). At sentencing, the court set the base offense level at 28, granted
a three-level acceptance-of-responsibility reduction, and calculated a "total offense
level of 25."

       The court recognized that Mr. Heilmann "had" two criminal history points -- one
from a prior battery conviction and one from a conviction for trespass to his father's
vehicle -- that would have resulted in a category II criminal history and a guidelines
imprisonment range of 63-78 months, subject to a five-year statutory maximum, see 18
U.S.C. § 1952(a)(3)(A). But, comparing the trespass offense to a family feud, as
suggested by Mr. Heilmann's motion for a downward departure, the court excluded the
criminal history point with respect to that conviction only, consequently lowered the
criminal history to category I, and announced a guidelines range of 57-71 months
(subject to the five-year statutory maximum). See U.S.S.G.§ 4A1.1(c) (adding one
criminal history point for each prior sentence not otherwise counted), and U.S.S.G.
§ 4A1.3 (policy statement) (permitting downward departure if defendant's criminal
history category significantly overrepresents seriousness of defendant's criminal
history).

      The court then imposed a 48-month sentence, after making the following
observation:

      It represents a downward departure because 57 months is the bottom
      range of the guidelines, it's kind of calculated because they had a
      computer that worked out all of these things and it seems to me that four
      years is a reasonable number, and 60 months is too long, and I can parse
      this out as I want. But it seems to me we're about at a four-year level and
      might as well leave it at that level.

      On appeal, the government argues that the court provided no factual basis to
support a departure to a sentence under 57 months. Mr. Heilmann contends, on the
other hand, that his sentence resulted from an unreviewable exercise of the court’s
discretion, because it fell “well within” the 46-57 month range applicable to a category
I criminal history and an offense level of 23. He maintains that the court decreased his
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offense level to 23 by implicitly granting him safety-valve relief under U.S.S.G.
§ 5C1.2. See U.S.S.G. § 2D1.1(b)(6) (grant two-level decrease in offense if defendant
meets criteria of § 5C1.2).

         We conclude that the district court abused its discretion by departing below
57 months. See United States v. Allery, 175 F.3d 610, 614 (8th Cir. 1999) ("lack of
prior criminal history can never furnish the basis for a downward departure"), and
U.S.S.G. § 4A1.3 (policy statement) (lower limit of range for criminal history category
I is set for a first offender with the lowest risk of recidivism; departure below the lower
limit of the guidelines range for category I on the basis of the adequacy of criminal
history “cannot be appropriate”). Mr. Heilmann’s contention that he was sentenced
within the applicable guidelines range reflects a misunderstanding of the charge to
which he pleaded, the relevant guidelines, and this court’s precedent: He pleaded
guilty to violating 18 U.S.C. § 1952, not 21 U.S.C. § 841; he therefore was ineligible
for consideration under U.S.S.G. § 5C1.2, as it applies only to statutes with mandatory
minimum sentences; and he could not have received safety-valve relief in any case
because of his two criminal history points, see United States v. Webb, 218 F.3d 877,
881 (8th Cir. 2000), petition for cert. filed (Dec. 11, 2000) (U.S.S.G. § 4A1.3 does not
authorize addition or subtraction of criminal history points from a defendant's record
so as to create eligibility for safety-valve relief), and U.S.S.G. § 5C1.2(1) (defendant
may not have more than one criminal history point).

      Accordingly, we vacate the sentence and remand the case for further proceedings
consistent with this opinion.

      A true copy.

             Attest:

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

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