### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 11-30643 Summary Calendar

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 c o n s p i r a c y to distribute less than 50 kilograms of marijuana, three counts of distribution of less th a n 5 0 kilograms of marijuana, two count s o f 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

m o n ths in prison for the firearm offenses, and 210 months for the her o i n offenses, all to be served concurrently. For the first time on appeal, Delco argues U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D April 5, 201 2 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the cour t has d ete rm inedt hat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 11-30643 Document: 00511812978 Page: 1 Date Filed: 04/05/2012No. 11-30643

that the district court plainly erre d by enhancing his sentence pursuant to U.S.S.G. § 2K2.1(b)(6) because he did not transfer the fir e a r m s w i t h 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 h a d t h e requisite knowledge, intent, or
reason to believe under § 2K2.1(b)(6) and whe t h e r 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 p l a i n e r ror. See United States v. Chung , 261 F.3 d 5 3 6 , 5 3 9 (5th Cir. 2001). Thus, Delco cannot show that the district court plainly erre d by enhancing his sentence pursuant to § 2K2.1(b)(6) and assigning criminal history points t o h i s prior Louisiana conviction. See id. D e l c o a l s o a r gu e s t h a t the district co u r t i m p o s e d a s ub s t a n t iv e l y unreasonable sentence because the district court gave no weigh t t o the assistance he provided to federal agents. However, he has not sho w n that his

s e n t ence did not account for a factor that should have received significa n t weight, gave s i gn i f

icant weight to an irrelevant or improper factor, or represented a c l e ar error of judgment in balancing sentencing factors. See United States v. Co o k s , 5 8 9 F.3d 173, 186 (5th Cir. 2009). As a result, he has failed to overcome the p r e sumption of reasonableness that attaches to his

w i th i n - the-guidelines sentence on appellate review. See United States v . Campos-Maldonado , 531 F.3d 337, 338 (5th Cir. 20 0 8)

. 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 Case: 11-30643 Document: 00511812978 Page: 2 Date Filed: 04/05/2012