IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________ No. 93-7685

_______________

UNITED STATES OF AMERICA, Plaintiff-Appellee,

VERSUS
GARY DANIEL ALBRO,
Defendant-Appellant.

_________________________ Appeal from the United States District Court for the Southern District of Texas

_________________________ (September 1, 1994)

Before POLITZ, Chief Judge, WISDOM and SMITH, Circuit Judges.

PER CURIAM:

The defendant, Gary Albro, pleaded guilty to one count of

bank fraud, in violation of 18 U.S.C. § 1344. He appeals the portion of his sentence that imposes restitution. We find error
only in the fact that the district court delegated certain matters to the probation officer that, under the caselaw of this
court, cannot be delegated.Albro was sentenced to eight months' imprisonment and supervised relea se of five years and ordered to pay a $50 special assessment. He was ordered to pay restitution of $25,000 to the

First Bank--Brownsv ille, Texas, and $20,232 to Hartford Casualty1 Albro raises this argument for the first time on appeal. Accordingly,

we review the sentence only for plain error. We conclude that the unauthorized delegation of sentencing authority from an Article III judicial officer to a non-Article III official affects substantial rights and constitutes plain error, at least under the circumstances presented here. See United States v. Rodriguez , 15 F.3d 408, 414 (5th Cir. 1994) (listing the factors for "plain error" review).

2 Insurance Company. The judgment of sentence also reads as follows: "Restitution shall be paid: . . . in installments according to the following schedule of payments: in a payment schedule
as determined by the U.S. Probation Office."
Albro claims that this constitutes an unlawful delegation of
authority to the probation officer. 1 In U nited States v. Mancuso , 444 F.2d 691, 695 (5th Cir. 1971) (Supreme Court Justice Clark,
Retired, sitting by designation), this court held the following:

"The better practice is that w here parties are aggrieved, the
amounts to be paid and the manner of payment should be recited in

the [sentencing] order, rather than delegating these detai ls to

the probation officer" (citing Whitehead v. United States , 155

F.2d 460, 462 (6th Cir.), cert. denied , 329 U.S. 747 (1946)).

While the ins tant restitution order does designate the total
amount to be paid, it delegates the "manner of payment," which we
interpret to include the amount and timing of installments (if
any), as well as any other details of payment.

While the district cour t may alter the payment schedule under 18 U.S.C. § 3663(g) and is free to receive and consider

recommendations from the probation officer in this re gard, the

district court must designate the timing and amount of payments.

This reasoning is consistent with United States v. Ahmad , 2 F.3d3

245, 249 (7th Cir. 1993 ), in which the court held that "[h]ow

m uch a defendant owes, and the extent to which payment may be
deferred, is something the judge must decide." The Ninth Circuit
rejects this approach. S ee United States v. Barany , 884 F.2d
1255, 1260 (9th Cir. 1989), cert. denied , 493 U.S. 1034 (1990); United States v. Signori , 844 F.2d 635 (9th Cir. 1988) (declining

to follow Mancuso ).

The judgment of sentence, according ly, is VACATED, and this
matter is REMANDED for resentencing in regard to restitution.