United States v. McCrimmon , 97 F. App'x 484 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 18, 2004
Charles R. Fulbruge III
Clerk
No. 03-60373
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DARNELL DESHAWN MCCRIMMON, also known as Money D. McCrimmon,
also known as Darnell Williams, also known as Marcus Thomas
Dawson, also known as Dominic Anderson, also known as Quanell
Sims,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 1:01-CR-55-11-B
--------------------
Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.
PER CURIAM:*
Darnell Deshawn McCrimmon appeals his guilty-plea conviction
and sentence for conspiracy to possess with the intent to
distribute a mixture containing cocaine base. We reject
McCrimmon’s argument that because the superseding indictment was
dismissed prior to the entry of his guilty plea to that
indictment, the district court was without jurisdiction to accept
*
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that this opinion should not be published and is not precedent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.
No. 03-60373
-2-
his guilty plea. Even if the superseding indictment was in fact
dismissed, because the original indictment, which contained the
same charge as the superseding indictment, was still in force at
the time that McCrimmon entered his plea, the district court had
jurisdiction to accept McCrimmon’s guilty plea. United States v.
Jacquez-Beltran, 326 F.3d 661, 662 n.1 (5th Cir. 2003). Lastly,
McCrimmon does not contend that his plea was involuntary because
he thought that he was pleading guilty to the superseding
indictment as opposed to the original indictment.
McCrimmon argues next that the district court erred in
declining to apply the safety-valve provision of U.S.S.G.
§ 5C1.2. The district court, in declining to apply the safety-
valve provision, found that the sentencing guidelines had
adequately taken into consideration the fact that McCrimmon did
not possess any firearms during his criminal activities.
Section 2D1.1(6) calls for a two-level decrease in the
offense level for drug trafficking offenses if the defendant
meets five criteria set forth in U.S.S.G. § 5C1.2. See U.S.S.G.
§ 2D1.1(6). We have reviewed the record and briefs submitted by
the parties and hold that the district court clearly erred in
determining that the safety-valve provision was inapplicable on
the ground that the sentencing guidelines had adequately taken
into consideration the fact that McCrimmon did not possess any
firearms during his criminal activities. U.S.S.G. § 5C1.2(5);
United States v. Edwards, 65 F.3d 430, 433 (5th Cir. 1995).
No. 03-60373
-3-
Under U.S.S.G. § 5C1.2, no firearm may be possessed; therefore,
the fact that the guidelines take into consideration elsewhere
that no firearm was possessed is irrelevant. Accordingly, we
VACATE McCrimmon’s sentence and REMAND to the district court.
Upon remand, the district court should fully explore whether
McCrimmon satisfied the requirements of U.S.S.G. § 5C1.2.
VACATED AND REMANDED IN PART; AFFIRMED IN PART.