concurring:
While I concur in the result, I think our circuit precedent in United States v. Taylor, 305 F.2d 183 (4th Cir. 1962), is sufficient for our purposes as relied upon by the majority as persuasive.
Reliance on the Jimenez case, I think, is misplaced, and I do not construe our opinion as establishing the rule of that case in this circuit if the same or similar facts were presented to us.
In that connection, I also do not agree with the majority that there are only two cases which bear on the question before us. The case of United States v. Santarpio, 560 F.2d 448 (1st Cir. 1977), was on substantially the same facts as Jimenez and arrived at an opposite result under the same statute considered in Jimenez as here, 18 U.S.C. § 3651. As Santarpio noted, Fuller v. Oregon, 417 U.S. 40, 94 S.Ct. 2116, 40 L.Ed.2d 642 (1974), addressed the same fact situation in a claim concerning the constitutional validity of such a condition of probation, and holds such a condition (repayment of attorneys’ fees) to be constitutionally valid provided, however, that funds must be available or else probation may not be revoked for violation of that condition.