United States v. Parsons

134 F. App'x 743

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 21, 2005
• Docket: 04-50809
• Status: Unpublished

Opinion

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 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, 113 S.Ct. 1770, 123 L.Ed.2d 508 (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, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997); Olano, 507 U.S. at 732-33, 113 S.Ct. 1770. 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.

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.