UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 99-4705

PEDRO HERNANDEZ-RAMIREZ,
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-98-353)

Submitted: April 28, 2000

Decided: May 26, 2000

Before WILKINS and LUTTIG, Circuit Judges,
and BUTZNER, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Louis C. Allen III, Federal Public Defender, John A. Dusenbury,
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 Caro-
lina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Pedro Hernandez-Ramirez appeals from his sixty-eight month sen-
tence following his conviction for illegally reentering the United
States after being deported for committing an aggravated felony, in
violation of 8 U.S.C.A. § 1326(a), (b)(2) (West 1999). Hernandez-
Ramirez's attorney has filed a brief in accordance with Anders v. Cal-
ifornia, 386 U.S. 738 (1967). Counsel states that there are no merito-
rious grounds for appeal but addresses the following issue: whether
the district court erred in denying Hernandez-Ramirez's motion to
dismiss the indictment on the ground that his prior felony conviction
was constitutionally defective and therefore could not serve as basis
for sentence enhancement. Hernandez-Ramirez has filed a pro se sup-
plemental brief. We affirm.

The Supreme Court has held that the Constitution requires only that
collateral attacks be allowed against predicate convictions obtained in
violation of the right to appointed counsel. See Custis v. United
States, 511 U.S. 485, 493-97 (1994). Although Custis was decided in
the context of the Armed Career Criminal sentencing enhancement
under 18 U.S.C. § 924(e)(1) (1994), the Supreme Court has held that
8 U.S.C.A. § 1326(b)(2) is a penalty provision and not an element of
a separate crime. See Almendarez-Torres v. United States, 523 U.S.
224, 235 (1998).

Hence, under Custis, the Constitution requires only that collateral
attacks in illegal re-entry after deportation proceedings be allowed on
convictions obtained in violation of the right to counsel. Because
Hernandez-Ramirez had counsel during his state court proceedings,
he cannot now challenge that conviction.

Accordingly, we affirm Hernandez-Ramirez's sentence. We have
examined the entire record in this case in accordance with the require-

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ments of Anders, and find no meritorious issues for appeal. We fur-
ther find meritless Hernandez-Ramirez's claims in his pro se
supplemental brief. This court requires that counsel inform his client,
in writing, 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 counsel believes that such a petition would be frivolous, then
counsel may move in this court for leave to withdraw from represen-
tation. Counsel's motion must state that a copy thereof was served on
the client. 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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