United States v. Jose Rivera-Velez, A/K/A "Cheo,"

Appellant José Rivera-Velez pled guilty to a charge of possession of stolen material, 18 U.S.C. § 1708 (1982), and was sentenced by the district court to a five-year term of imprisonment which the court suspended. Rivera-Velez was placed on probation and the court imposed the special monetary assessment of $50 required by law, 18 U.S.C. § 8013 (Supp. II 1984).

Appellant challenges on appeal only the $50 special assessment, contending that imposition of a mandatory fine upon an indigent defendant violates the Constitution. It is not controverted that at the time of his being sentenced and, insofar as appears, at present, Rivera-Velez was and is indigent. There is no indication, however, that the government has attempted or will attempt to collect the special assessment while Rivera-Velez lacks the ability to pay.

The Second Circuit in United States v. Pagan, 785 F.2d 378, (2d Cir.), cert. denied, — U.S. —, 107 S.Ct. 667, 93 L.Ed.2d 719 (1986), has upheld against constitutional attack the imposition of a similar special assessment under 18 U.S.C. § 3013 upon an indigent defendant. We agree with the Second Circuit. The mere existence during indigency of an outstanding penal liability does not violate a defendant’s rights. Constitutional considerations will come into play “only if the government seeks to enforce collection of the assessments ‘at a time when [the defendant is] unable, through no fault of his own, to comply.’ ” Id. at 381 (quoting United States v. Hutch-ings, 757 F.2d 11, 14-15 (2d Cir. 1985)). See also United States v. Atkinson, 788 F.2d 900, 903-04 (2d Cir. 1986). So long as Rivera-Velez remains indigent he has ample protections against being sanctioned improperly for non-payment, and, of course, his financial circumstances could improve over time.

Affirmed.