                                        ___________

                                        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Peter Makras,                                 *       [UNPUBLISHED]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 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
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.




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