IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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 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

United States Court of Appeals

Fifth Circuit

F I L E D

April 5, 2012

Lyle W. Cayce

Clerk

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: 1 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

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