                                                       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that this opinion should not be published and is not precedent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.
