                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS          October 8, 2003
                       FOR THE FIFTH CIRCUIT
                                                           Charles R. Fulbruge III
                                                                   Clerk

                             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




     *
        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that this opinion should not be published and is not precedent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. 02-41020
                                  -2-

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.




     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).
