               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                            No. 02-20084
                        Conference Calendar



UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee,

versus

OCTAVIO ORBE-ELORZA,

                                         Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. H-01-CR-606-ALL
                      --------------------
                         August 21, 2002

Before HIGGINBOTHAM, DAVIS, and PARKER, Circuit Judges.

PER CURIAM:*

     Octavio Orbe-Elorza appeals the sentence imposed following

his guilty plea conviction of being found in the United States

after deportation in violation of 8 U.S.C. § 1326.     Orbe-Elorza

argues that his sentence was improperly enhanced pursuant to

8 U.S.C. § 1326(b)(2) based on his prior deportation following an

aggravated felony conviction.   He contends that the sentencing




     *
       Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
                            No. 02-20084
                                 -2-

provision is unconstitutional.    He asks that his sentence be

vacated and his case remanded for resentencing under 8 U.S.C.

§ 1326(a).

     In Almendarez-Torres v. United States, 523 U.S. 224, 235

(1998), the Supreme Court held that the enhanced penalties in

8 U.S.C. § 1326(b) are sentencing provisions, not elements of

separate offenses.    The Court further held that the sentencing

provisions do not violate the Due Process Clause.    Id. at 239-47.

Orbe-Elorza acknowledges that his argument is foreclosed by

Almendarez-Torres, but asserts that the decision has been called

into doubt by Apprendi v. New Jersey, 530 U.S. 466, 489-90

(2000).    He seeks to preserve his argument for further review.

     Apprendi did not overrule Almendarez-Torres.    See Apprendi,

530 U.S. at 489-90; United States v. Dabeit, 231 F.3d 979, 984

(5th Cir. 2000), cert. denied, 531 U.S. 1202 (2001).    This court

must follow Almendarez-Torres “unless and until the Supreme Court

itself determines to overrule it.”    Id. at 984 (internal

quotation marks and citation omitted).

     Orbe-Elorza also argues that the district court

impermissibly delegated to the Probation Office its authority to

set the amount and timing of payments for the cost of a drug and

alcohol detection and treatment program, which the district court

required as a special condition of Orbe-Elorza’s supervised

release.    However, the district court did not delegate to the

Probation Office the authority to set the amount and timing of
                          No. 02-20084
                               -3-

Orbe-Elorza’s cost payments.   The district court directed the

Probation Office to determine Orbe-Elorza’s ability to pay the

cost of treatment.

     To the extent Orbe-Elorza challenges the district court’s

delegation of that factfinding task, his argument is foreclosed.

In United States v. Warden, 291 F.3d 363, 365-66 (5th Cir. 2002),

this court held that allowing a probation officer to determine a

prisoner’s ability to pay the costs of court-ordered treatment

programs was not an impermissible delegation of authority.   Orbe-

Elorza acknowledges that his argument is foreclosed by Warden.

He raises the argument to preserve it for further review.

     The judgment of the district court is AFFIRMED.

     The Government has moved for a summary affirmance in lieu of

filing an appellee’s brief.    In its motion, the Government asks

that the judgment of the district court be affirmed and that an

appellee’s brief not be required.   The motion is GRANTED.

     AFFIRMED; MOTION GRANTED.
