                      IN THE UNITED STATES COURT OF APPEALS
                               FOR THE FIFTH CIRCUIT

                                        ______________

                                         No. 01-21188
                                       Summary Calendar
                                        ______________


                               UNITED STATES OF AMERICA,

                                                                                 Plaintiff-Appellee

                                              versus

                              MANUEL TORRES-MALDONADO

                                                                             Defendant-Appellant.

                                      _________________

                           Appeal from the United States District court
                               for the Southern District of Texas
                                USDC No. H-01-CR-469-ALL
                                      _________________
                                        August 29, 2002

Before REYNALDO G. GARZA, JONES, and EMILIO M. GARZA, Circuit Judges.

REYNALDO G. GARZA, Circuit Judge:1

       On November 19, 1999, Manuel Torres-Maldonado was found in Huntsville, Texas after

having been previously deported following conviction for an aggravated felony. He was

subsequently convicted of illegal reentry following deportation subsequent to a conviction for an

aggravated felony, in violation of 8 U.S.C. § 1326(a) and (b)(2).

       Torres-Maldonado argues that it was plain error in violation of 18 U.S.C. § 3672 and

       1
        Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5th Cir. R.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.
Article III of the United States Constitution for the district court to delegate to a probation officer

the power to determine Torres-Maldonado’s ability to pay the costs of substance abuse detection

and treatment. Torres-Maldonado relies on United States v. Albro, 32 F.3d 173, 174 (5th Cir.

1994), which held that the court, rather than a probation officer, must make any decision as to the

amount and manner of restitution payments. See id. Nevertheless, United States v. Warden, 291

F.3d 363, 365-66 (5th Cir. 2002), forecloses Torres-Maldonado’s reliance on Albro. In Warden,

we held that in a case such as this, where the payments are solely for program costs, the probation

officer may make a factual determination regarding the defendant’s ability to pay..

       Torres-Maldonado also argues that the aggravated felony provision of 8 U.S.C. §

1326(b)(2) is unconstitutional. While he acknowledges that Almendarez-Torres v. United States,

523, U.S. 224, 235 (1998), forecloses this issue, he nonetheless asserts that Apprendi v. New

Jersey, 530 U.S. 466, 489-90 (2000) casts doubt upon this Almendarez-Torres. Apprendi,

however, 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). This court must follow Almendarez-Torres unless

and until it is overruled by the Supreme Court. See Dabeit, 231 F.3d at 984.

       Lastly, though neither party addresses this issue, the district court used the incorrect

edition of the sentencing guidelines to calculate Torres-Maldonado’s sentence. Because Torres-

Maldonado’s sentencing guidelines would have been the same under the 2001 edition that should

have been used, this does not constitute plain error, and we do not address it.

       AFFIRMED.




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