UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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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