United States v. McDermott

* Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
October 8, 2003
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-41020
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSEPH JOHN McDERMOTT,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 01-CR-543-ALL
--------------------
Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Joseph John McDermott (McDermott) appeals his conviction for
possession of child pornography in violation of 18 U.S.C.
§§ 2252A(a)(5)(B) and 2. He argues that the Supreme Court’s
decision in Ashcroft v. Free Speech Coalition, 535 U.S. 234
(2002), which invalidated two of the definitions of “child
pornography” applicable to the statute under which he was

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No. 02-41020
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1 In addition, in the event McDermott is convicted and
sentenced after remand, the district court shall impose special
conditions of supervised release, if any, in conformity with our
decisions in United States v. Vega, 332 F.3d 849, 853 and n.8
(5th Cir. 2003), and United States v. Martinez, 250 F.3d 941, 942
(5th Cir. 2001).
indicted and convicted, rendered his indictment insufficient and
his guilty plea invalid.
The record does not establish whether actual children were
depicted in the child pornography possessed by McDermott.
McDermott has shown that his guilty plea was invalid because it
was not knowing, intelligent, and voluntary and the factual basis
for the plea was inadequate. See United States v. Gobert, 139
F.3d 436, 439 (5th Cir. 1998); United States v. Briggs, 939 F.2d
222, 227 (5th Cir. 1991).
Accordingly, we VACATE the district court’s judgment and
REMAND for further proceedings consistent with the Supreme
Court’s decision in Ashcroft v. Free Speech Coalition, 535 U.S.
234 (2002).1
VACATED AND REMANDED.

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