     Case: 11-30643     Document: 00511812978         Page: 1     Date Filed: 04/05/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                            April 5, 2012
                                     No. 11-30643
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JOHN E. DELCO, also known as Tattoo Delco,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:09-CR-57-1


Before KING, JOLLY, and GRAVES, Circuit Judges.
PER CURIAM:*
        John E. Delco pleaded guilty to conspiracy to distribute less than 50
kilograms of marijuana, three counts of distribution of less than 50 kilograms
of marijuana, two counts of distribution of less than 100 grams of heroin, and
four counts of being a felon in possession of a firearm. The district court
sentenced Delco to 60 months in prison for each of the marijuana offenses, 120
months in prison for the firearm offenses, and 210 months for the heroin
offenses, all to be served concurrently. For the first time on appeal, Delco argues

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
   Case: 11-30643     Document: 00511812978    Page: 2   Date Filed: 04/05/2012

                                  No. 11-30643

that the district court plainly erred by enhancing his sentence pursuant to
U.S.S.G. § 2K2.1(b)(6) because he did not transfer the firearms with the
knowledge, intent or reason to believe that the firearms would be used or
possessed in connection with another felony offense and the district court plainly
erred by assigning criminal history points to his prior Louisiana conviction for
enticing a juvenile to remain away because he was not represented by counsel
during those proceedings.
      The question of whether Delco had the requisite knowledge, intent, or
reason to believe under § 2K2.1(b)(6) and whether Delco was represented by
counsel on a prior conviction are questions of fact. Questions of fact capable of
resolution by the district court can never constitute plain error. See United
States v. Chung, 261 F.3d 536, 539 (5th Cir. 2001). Thus, Delco cannot show
that the district court plainly erred by enhancing his sentence pursuant to
§ 2K2.1(b)(6) and assigning criminal history points to his prior Louisiana
conviction. See id.
      Delco also argues that the district court imposed a substantively
unreasonable sentence because the district court gave no weight to the
assistance he provided to federal agents. However, he has not shown that his
sentence did not account for a factor that should have received significant
weight, gave significant weight to an irrelevant or improper factor, or
represented a clear error of judgment in balancing sentencing factors. See
United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009). As a result, he has
failed to overcome the presumption of reasonableness that attaches to his
within-the-guidelines sentence on appellate review.        See United States v.
Campos-Maldonado, 531 F.3d 337, 338 (5th Cir. 2008). Delco has therefore
failed to demonstrate that the district court abused its discretion by imposing a
substantively unreasonable sentence. See Gall v. United States, 552 U.S. 38, 51
(2007). Accordingly, the judgment of the district court is AFFIRMED. Delco’s
motion to file part II of his reply brief under seal is GRANTED.

                                        2
