                                                             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opinion should not be published and is not precedent except under the limited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
