                            _____________

                            No. 96-1740SI
                            _____________

United States of America,       *
                                *
               Appellee,        *   Appeal from the United States
                                *   District Court for the Southern
     v.                         *   District of Iowa.
                                *
William Payton Whitener,        *      [UNPUBLISHED]
                                *
               Appellant.       *
                          _____________

                  Submitted:   November 19, 1996

                     Filed:   December 13, 1996
                          _____________

Before FAGG and HANSEN, Circuit Judges, and MAGNUSON,* District
     Judge.
                          _____________


PER CURIAM.


     William Payton Whitener pleaded guilty to conspiracy to
distribute more than 500 grams of cocaine in violation of 21 U.S.C.
§§ 846 and 841(a)(1).      In exchange for Whitener's plea, the
Government dismissed three distribution counts in the indictment.
The written plea agreement noted the statutory minimum sentence was
60 months, see 21 U.S.C. § 841(b)(1)(B) (1994), and under Federal
Rule of Criminal Procedure 11(e)(1)(C), specified a 60-month
sentence was appropriate. At the plea hearing, the district court
conditionally approved the agreement and ordered the preparation of
a presentence report (PSR). See Fed. R. Crim. P. 11(e)(2). The
PSR noted the statutory minimum term of imprisonment was 60 months,
the applicable sentencing range under the 1995 U.S. Sentencing


     *The Honorable Paul A. Magnuson, Chief Judge, United States
District Court for the District of Minnesota, sitting by
designation.
Guidelines Manual (hereinafter Guidelines) was 46 to 57 months, and
Whitener might not qualify for relief from the statutory minimum
sentence under the "safety valve," see 18 U.S.C. § 3553(f);
Guidelines § 5C1.2. At the sentencing hearing, Whitener's counsel
asked the district court to impose the 60-month sentence specified
in the plea agreement.     The district court approved the plea
agreement and sentenced Whitener to imprisonment for 60 months,
stating the sentence set forth in the plea agreement made sense
both for Whitener and for the public.


     On appeal, Whitener asserts the district court committed error
in departing above the applicable Guidelines range without
justifiable reasons.     We disagree.     According to Guidelines
§ 6B1.2, a district court may only accept a plea agreement
containing a specific sentence if the agreed sentence is within the
applicable Guidelines range, or if the agreed sentence departs from
the applicable range for "justifiable reasons."      In Whitener's
case, however, Congress's provision of a 60-month statutory minimum
sentence for his offense justifies his 60-month sentence. Indeed,
when a statutory minimum sentence exceeds the applicable Guidelines
range, Guidelines § 5G1.1(b) requires imposition of the statutory
minimum sentence. See United States v. Stoneking, 60 F.3d 399, 402
(8th Cir. 1995) (en banc) (explaining Sentencing Commission cannot
override Congress), cert. denied, 116 S. Ct. 926 (1996); United
States v. Schmeltzer, 960 F.2d 405, 408 & n.3 (5th Cir. 1992)
(sentences within Guidelines range but below statutory minimum must
be reversed). Thus, we affirm Whitener's sentence.


     A true copy.


          Attest:


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




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