IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-20112 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

SERAFIN ALAMILLA-HERNANDEZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-01-CR-723-1 -------------------- October 30, 2002 Before DeMOSS, BENAVIDES, and STEWART, Circuit Judges.

PER CURIAM:*

Serafin Alamilla-Hernandez argues that the district court

plainly erred in impermissibly delegating to the Probation Office

the court’s authority to set the amount and timing of payments of

the cost of a drug and alcohol detection and treatment program,

which the district court required as a special condition of

Alamilla’s supervised release. The district court did not

delegate to the Probation Office the amount and timing of

Alamilla’s cost payments. The district court directed the

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-20112 -2-

Probation Office to determine Alamilla’s ability to pay the cost

of treatment. This court has determined that the delegation of

that factfinding task is not an unlawful delegation of authority

by the district court. See United States v. Warden,

(5th Cir. 2002). The district court did not plainly

err in imposing the cost-payment special condition of supervised

release.

Alamilla concedes that his argument that

(b)(2) is unconstitutional as applied in his case is

foreclosed by the Supreme Court’s decision in Almendarez-Torres

v. United States,

(1998), but argues that such

decision has been called into question by the holding in Apprendi

v. New Jersey,

(2000).

Apprendi did not overrule Almendarez-Torres. See Apprendi,

; see also United States v. Dabeit,

(5th Cir. 2000), cert. denied,

(2001). This

court must follow the precedent set in Almendarez-Torres “unless

and until the Supreme Court itself determines to overrule it.”

Dabeit,

(internal quotation and citation

omitted).

AFFIRMED.