                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 05-4147



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


BRIAN A. SALCEDO,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Lacy H. Thornburg,
District Judge. (CR-03-53)


Submitted:   June 14, 2006                  Decided:   July 10, 2006

Before WILKINSON, NIEMEYER, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Samuel B. Winthrop, Statesville, North Carolina, for Appellant.
Gretchen C. F. Shappert, United States Attorney, Matthew T.
Martens, Assistant United States Attorney, Charlotte, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

            Brian   A.   Salcedo   pled      guilty,   pursuant   to   a    plea

agreement, to conspiracy to commit wire and computer fraud in

violation of 18 U.S.C. § 371, fraud activity in connection with

computers in violation of 18 U.S.C. § 1030(a)(5), accessing a

computer without authorization and obtaining information from a

protected computer involving interstate information in violation of

18 U.S.C. § 1030(a)(2), and accessing a protected computer without

authorization and obtaining a thing of value in violation of 18

U.S.C. § 1030(a)(4).     He was sentenced to 108 months in prison and

three years of supervised release.            Salcedo appealed and raises

three issues concerning his sentence.             He asserts the district

court erred in calculating his base offense level, sentencing him

under a mandatory guidelines scheme, and sentencing him under U.S.

Sentencing Guidelines Manual § 2X1.1 (2003).            We affirm.

            Salcedo   asserts   on    appeal    that   the   district      court

improperly calculated his base offense level as seven, rather than

six.    He further asserts that his sentence violates the Sixth

Amendment because he was sentenced under the mandatory guidelines

scheme found to be unconstitutional in United States v. Booker, 543

U.S. 220 (2005).      Salcedo’s plea agreement contained a waiver of

appellate rights that stated in relevant part:

       Defendant . . . waives all such rights to contest the
       conviction and/or sentence except for:    (1) claims of
       ineffective assistance of counsel; (2) prosecutorial
       misconduct; or (3) the sentence, but only to the extent

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       defendant contests the sentence that one or more findings
       on guideline issues were inconsistent with the explicit
       stipulations contained in any paragraph in the plea
       agreement filed herein, or on the basis of an
       unanticipated issues that arises during the sentencing
       hearing and which the District Judge finds and certifies
       to be of such an unusual nature as to require review by
       the Fourth Circuit of Appeals.

Whether the defendant has effectively waived his right to appeal is

an issue we review de novo.        United States v. Marin, 961 F.2d 493,

496 (4th Cir. 1992).            This court “will enforce the waiver to

preclude a defendant from appealing a specific issue if the record

establishes that the waiver is valid and that the issue being

appealed is within the scope of the waiver.”                United States v.

Blick, 408 F.3d 162, 168 (4th Cir. 2005) (citations omitted).

Salcedo does not dispute his plea agreement was knowingly and

voluntarily entered into after consultation with counsel. Thus, we

find   the     waiver   of   appellate    rights   it    contains   valid   and

enforceable.      Because we find both of these claims are covered by

Salcedo’s waiver of appellate rights, we do not consider them

further.

             Salcedo next asserts that the district court erred in

using intended conduct to enhance his sentence under USSG § 2X1.1.

This   claim    is   properly    before   us   because   the   district   court

certified it as being so unusual that it required our review.

Salcedo claims that under USSG § 2B1.1, the provision for the

substantive offense underlying the conspiracy, only acts that were

actually completed can serve to enhance his sentence. We disagree.

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In United States v. Depew, 932 F.2d 324 (4th Cir. 1991), this court

found that in a conspiracy, the correct starting point in a

guidelines calculation is USSG § 2X1.1.               Id. at 328-29.       From

there,   a    court   should   look    to     the   provision   covering   the

substantive offense, and the relevant enhancements.               This court

also held that “because the conspiracy provision is the provision

that sends you there and the conspiracy provision contemplates that

some conspiracies will not be completed, the obvious intent is to

use that provision whether the conspiracy was completed or not.”

Id. at 328.    Therefore, we find that the district court did not err

in using Salcedo’s admitted intentions to harm 250 or more victims

and to traffic the stolen information to enhance his sentence.               We

further find that because Salcedo completed all the acts necessary

for the successful completion of the substantive offense, the

three-level reduction under USSG § 2X1.1(b) does not apply.

             Accordingly, we affirm Salcedo’s sentence.          We dispense

with oral argument because the facts and legal contentions are

adequately presented in the materials before the court and argument

would not aid the decisional process.



                                                                     AFFIRMED




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