UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 98-4082

ADOLFO HERNANDEZ-DIAZ,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 98-4083

ADOLFO HERNANDEZ-DIAZ,
Defendant-Appellant.

Appeals from the United States District Court
for the Middle District of North Carolina, at Durham.
N. Carlton Tilley, Jr., District Judge.
(CR-97-176, CR-97-177)

Submitted: December 22, 1998

Decided: January 21, 1999

Before WIDENER, WILKINS, and KING, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

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COUNSEL

Thomas N. Cochran, Assistant Federal Public Defender, Greensboro,
North Carolina, for Appellant. Walter C. Holton, Jr., United States
Attorney, Arnold L. Husser, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Adolfo Hernandez-Diaz entered guilty pleas to two separate indict-
ments charging him with distribution of marijuana and possession of
marijuana with intent to distribute, see 21 U.S.C. § 841(a) (1994), and
re-entry after deportation for an aggravated felony, see 8 U.S.C.A.
§ 1326(a), (b)(2) (West Supp. 1998). The district court imposed a sen-
tence of seventy months.* Counsel has filed a brief in accordance
with Anders v. California, 386 U.S. 738 (1967), raising one issue but
stating that in his view there are no meritorious issues. Hernandez-
Diaz has been informed of his right to file a pro se supplemental brief
but has not filed a brief. After a review of the record, we affirm.

In 1990, Hernandez-Diaz was deported after being convicted in
Texas on a state charge of felonious distribution of cocaine. In 1995,
Hernandez-Diaz illegally re-entered the United States. In 1997,
Hernandez-Diaz pled guilty to the instant federal drug charges and to
illegal re-entry. In computing his sentence, the district court enhanced
his base offense level by sixteen levels because Hernandez-Diaz ille-
gally entered the country after being deported for an aggravated fel-
ony. See U.S. Sentencing Guidelines Manual§ 2L1.2(b)(1)(A)
(1997). Because a 1990 amendment to 8 U.S.C.A. § 1101(43) (West
Supp. 1998) expanded the definition of "aggravated felony" found in
§ 1326(b)(2) to include state drug convictions, and the conduct under-
lying the 1990 Texas conviction occurred before the amendment,
_________________________________________________________________
*The district court later reduced the sentence to 50 months pursuant
to a government motion filed under Fed. R. Crim. P. 35(b).

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Hernandez-Diaz suggests in his Anders brief that the enhancement
violated the Ex Post Facto Clause.

The Ex Post Facto Clause prohibits any law that applies to events
which occurred before its enactment "which punishes as a crime an
act previously committed, which was innocent when done; which
makes more burdensome the punishment for a crime after its commis-
sion[;] or which deprives one charged with crime of any defense
available according to law at the time when the act was committed."
Plyler v. Moore, 129 F.3d 728, 734 (4th Cir. 1997), cert. denied, 118
S. Ct. 2359 (1998) (quoting Beazell v. Ohio, 269 U.S. 167, 169
(1925)).

The amendment in question here applies to "offenses committed on
or after the date of the enactment of [the] Act." Pub. L. No. 101-649,
§ 501(b), 104 Stat. 4978, 5048. The amendment took effect on
November 29, 1990. Hernandez-Diaz illegally re-entered the country
in 1995, well after the amendment took effect. The amendment thus
applied in his case. Further, the Supreme Court has held that
§ 1326(b)(2) is a penalty provision and not an element of a separate
crime, see Almendarez-Torres v. United States , 118 S. Ct. 1219
(1998), and this court has held that the amendment does not apply to
predicate offenses that may be used to enhance a sentence for illegal
re-entry. See United States v. Campbell, 94 F.3d 125, 128 (4th Cir.
1996), cert. denied, 117 S. Ct. 1847 (1997). Consequently,
Hernandez-Diaz's argument is without merit.

In accordance with Anders, we have examined the entire record in
this case and find no reversible error. We therefore affirm the convic-
tion and sentence. We deny counsel's motion for leave to withdraw
at this time. This court requires that counsel inform his client, in writ-
ing, of his right to petition the Supreme Court of the United States for
further review. If the client requests that a petition be filed, but coun-
sel believes that such a petition would be frivolous, then counsel may
again move in this court for leave to withdraw from representation.
Counsel's motion must state that a copy thereof was served on the cli-
ent.

We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the record and briefs, and oral argu-

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ment would not aid the decisional process.

AFFIRMED

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