Unpublished Disposition, 899 F.2d 1226 (9th Cir. 1990)

MEMORANDUM^** 

Rousch was charged in a first superseding indictment with five counts of aiding and abetting the robbery of a federal savings and loan institution. Following a guilty plea to one count, he was sentenced to fourteen years in prison, with all but 134 days of his sentence suspended. He was placed on five years probation subject to certain conditions. Further, he was ordered to pay a special assessment fee of $50.00, pursuant to 18 U.S.C. § 3013(a).

Subsequently, Rousch was arrested for probation violation. Following a hearing, the district court found that Rousch had violated the conditions of his probation by (a) being arrested for, and charged with, conspiracy to commit a robbery, (2) association with individuals who were not law-abiding persons, and (3) failing to complete his sixty-day sentence of consecutive weekends in custody. The district court revoked Rousch's probation and executed his suspended sentence.

In this appeal, Rousch contends that the district court erred in finding that he had violated his probation because the evidence failed to show that he had agreed to become involved in the robbery. We disagree.

Here, an agreement can be inferred from Rousch's actions. He initiated the conversation respecting the robbery with the two men who ultimately committed it. He gave advice to them regarding how the robbery was to be committed; what type of clothing to wear; where to park the car; where to look for surveillance cameras; what specifically to tell the teller; and when and how to leave the bank. After the robbery, Rousch accepted from them $200.00 of the money taken during the robbery.

We conclude that the evidence was sufficient reasonably to satisfy the district court that Rousch had broken the law. See United States v. Guadarrama, 742 F.2d 487, 489 (9th Cir. 1984). In addition, there was evidence that Rousch had associated with individuals who were not law-abiding persons and that he failed to complete his sixty-day sentence of consecutive weekends in custody. Therefore, the district court did not err in finding that Rousch had violated the terms of his probation. We conclude that the district court did not abuse its discretion in revoking Rousch's probation, see United States v. Hamilton, 708 F.2d 1412, 1414 (9th Cir. 1983), and affirm that portion of the district court's judgment.

However, this court has held that 18 U.S.C. § 3013, the special assessment statute, was passed in violation of the origination clause of the United States Constitution, Art. I, Sec. 7. United States v. Munoz-Flores, 863 F.2d 654, 661 (9th Cir. 1988), cert. granted, 110 S. Ct. 48 (1989). Accordingly, the $50.00 special assessment is vacated.

AFFIRMED IN PART; VACATED IN PART.