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United States v. Parsons , 134 F. App'x 743 ( 2005 )


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  •                                                              United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT                       June 21, 2005
Charles R. Fulbruge III
Clerk
No. 04-50809
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GARY BURNETT PARSONS,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:04-CR-65-2
Before JONES, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM:*
Gary Burnett Parsons appeals his guilty-plea conviction
and sentence for aiding and abetting the possession with intent to
distribute more than five grams of crack within one thousand feet
of a protected location.       He was sentenced to one hundred twenty
months of imprisonment and sixteen years of supervised release.
For the first time on appeal, Parsons argues that 21
U.S.C. § 860 is unconstitutionally vague.         In connection with this
argument, Parsons contends that the evidence is insufficient to
support the factual basis for his guilty plea and the district
*
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opinion should not be published and is not precedent except under the limited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.
court erred in allocating a two-point enhancement pursuant to
U.S.S.G. § 2D1.2.
Because this vagueness challenge was not raised in the
district court, we review it for plain error only.   United States
v. Lankford,
    196 F.3d 563
    , 570 (5th Cir. 1999); United States v.
Spires,
    79 F.3d 464
    , 465 (5th Cir. 1996); United States v. Knowles,
    29 F.3d 947
    , 950-51 (5th Cir. 1994).     To prevail on plain-error
review, Parsons must show that (1) there is an error, (2) the error
is plain, which means clear and obvious, and (3) the error affects
substantial rights.   United States v. Olano,
    507 U.S. 725
    , 732-36
(1993). Given the lack of controlling authority on this particular
vagueness issue, any error on the part of the district court was
not clear or obvious and could not have been plain error.      See
United States v. Calverley,
    37 F.3d 160
    , 162-64 (5th Cir. 1994) (en
banc), abrogated in part, Johnson v. United States,
    520 U.S. 461 
    (1997);
    Olano, 507 U.S. at 732-33
    .   Because Parsons’s challenge to
the constitutionality of 21 U.S.C. § 860 does not satisfy plain-
error review, this court need not reach his remaining claims, which
are dependent upon a holding by the court that the statute is
indeed constitutionally lacking. Accordingly, the district court’s
judgment is AFFIRMED.
2