                         UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                            No. 02-4026
YOLANDA PATRICE BLACK,
              Defendant-Appellant.
                                       
            Appeal from the United States District Court
       for the Middle District of North Carolina, at Durham.
             N. Carlton Tilley, Jr., Chief District Judge.
                             (CR-01-62)

                      Submitted: May 24, 2002

                      Decided: June 19, 2002

   Before WILKINS, LUTTIG, and WILLIAMS, Circuit Judges.



Vacated and remanded by unpublished per curiam opinion.


                            COUNSEL

Tamura D. Coffey, WILSON & ISEMAN, L.L.P., Winston-Salem,
North Carolina, for Appellant. Anna Mills Wagoner, United States
Attorney, Paul A. Weinman, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.



Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2                      UNITED STATES v. BLACK
                             OPINION

PER CURIAM:

   Yolanda Patrice Black pled guilty to one count of mail fraud, 18
U.S.C. §§ 1341, 2 (1994), and was sentenced to a term of twenty-five
months imprisonment. Black appeals her sentence, arguing that the
district court erred in counting a prior suspended sentence for an
uncounseled misdemeanor conviction in her criminal history. U.S.
Sentencing Guidelines Manual §§ 4A1.1(c), (d), 4A1.2 (1998). For
the reasons explained below, we vacate the sentence and remand for
further proceedings.

   Black had one prior North Carolina conviction for larceny of $100.
When she was prosecuted for this offense, Black asked that counsel
be appointed to represent her, but the state court judge, without mak-
ing a finding concerning indigency, denied her petition on the ground
that it was unlikely that she would be sentenced to a term of imprison-
ment. Black received a suspended sentence of forty-five days impris-
onment, eighteen months probation, and a fine of $200.

   When Black was sentenced for the instant offense, the district court
assigned her three criminal history points—one point for the larceny
sentence and two points for committing the instant offense while on
probation. USSG § 4A1.1(c). This score placed her in category II.
Black’s offense level was 16. The resulting guideline range was 24-
30 months.

   At sentencing, Black argued that her larceny sentence should not
be counted because the larceny conviction was constitutionally
invalid under Scott v. Illinois, 440 U.S. 367, 373-74 (1979) (holding
that, when no sentence of imprisonment is imposed, an indigent
defendant charged with a misdemeanor has no constitutional right to
counsel). Black maintained that her suspended sentence should be
treated as a sentence of imprisonment. The district court decided that
the sentence was properly counted, citing Nichols v. United States,
511 U.S. 738, 748-49 (1994) (reaffirming that no constitutional viola-
tion results when sentencing court considers sentence for prior
uncounseled misdemeanor conviction if no prison term was imposed
                        UNITED STATES v. BLACK                          3
for prior offense; overruling Baldasar v. Illinois, 446 U.S. 222
(1980)).

   Black argues on appeal that Nichols is not dispositive because the
prior sentence in that case was a fine, not a suspended sentence. Gen-
erally, a sentence for any conviction that has not been ruled constitu-
tionally invalid in a prior proceeding is to be counted in a defendant’s
criminal history. USSG § 4A1.2, comment. (n.6). But because Black
was denied counsel in connection with her larceny conviction, she
could challenge the constitutional validity of that conviction at sen-
tencing.* Where the facts are uncontested and an appeal raises a
purely legal question, review is close to de novo. Bacon, 94 F.3d at
161.

   Our decision is controlled by Alabama v. Shelton, 2002 WL
1008481, at *5, *11 (U.S. May 20, 2002) (No. 00-1214), in which the
Supreme Court affirmed the Alabama Supreme Court’s holding that
"[A] defendant who receives a suspended or probated sentence to
imprisonment has a constitutional right to counsel," and thus may not
receive a suspended sentence unless he is afforded or waives the
assistance of appointed counsel (internal quotation marks omitted).
The indigent defendant in Shelton represented himself against a mis-
demeanor assault charge but was not offered counsel at state expense,
and was sentenced to 30 days imprisonment, suspended on condition
that he pay court costs, a $500 fine, reparations of $25, and restitution
of $516.69. The Alabama Supreme Court upheld the conviction and
fine, but reversed the suspended sentence and in so doing vacated the
term of probation. Id. at *4. The U.S. Supreme Court agreed with its
holding. The Supreme Court’s decision requires that we remand
Black’s case to permit the district court to reconsider her sentence in
light of Shelton.

  *In Custis v. United States, 511 U.S. 485, 496 (1994), the Supreme
Court held that a defendant may not collaterally attack a prior conviction
underlying a statutory sentence enhancement unless the defendant was
indigent in the prior proceeding and was denied counsel. This Court has
extended Custis to sentencing guidelines cases. United States v. Bacon,
94 F.3d 158, 163 (4th Cir. 1996).
4                      UNITED STATES v. BLACK
   We therefore vacate the sentence and remand for further proceed-
ings consistent with this opinion. 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.

                                       VACATED AND REMANDED
