(dissenting):
To me this case presents simple issues which, irrespective of one’s humanitarian motives, should be resolved by affirmance. They scarcely warrant a homily on plea bargaining. The district judge had no discretion to sentence defendant under the Narcotic Addict Rehabilitation Act of 1966, 18 U.S.C.A. § 4251 et seq. He cannot, therefore, be reversed for failure to exercise nonexistent discretion. Nor was his general discretion to grant continuances abused by his failure to consider postponing sentence to enable counsel, possibly, to qualify defendant for disposition under the Act.
When defendant came on for sentencing, the district judge was in possession of a presentence report which disclosed that ■ there was pending against defendant in a state court in New York the charges of “felonious possession of narcotic drug” and “unlawful possession of hypodermic needle.”1 The correctness of this statement is not in issue. In argument we were supplied with a certificate of the Supreme Court of the State of New York, County of New York, which showed that an indictment containing two counts charging these offenses was returned September 18, 1967, and that the case was disposed of on *950July 3, 1968, by defendant’s plea of guilty to the count charging felonious possession of a narcotic drug, with defendant sentenced to the penitentiary of the City of New York for a term of one year, execution of sentence suspended without probation. In oral argument, counsel for defendant admitted that an undisposed of felony charge was pending against defendant when he appeared for sentencing before the district judge.
Equally beyond dispute is the rule that the district judge properly might consider and rely upon truthful statements in the presentence report, unhampered by the rules governing admissibility at trial. Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1948).
Whether in fact known to the district judge, defendant was at the time of sentence ineligible to be sentenced under the Act. Throughout the Act its various provisions apply only to one who is an “eligible offender” and that phrase is defined in § 4251(f).2 As a reading of the text will demonstrate, the definition of “eligible offender” excludes one “against whom there is pending a prior charge of a felony which has not been finally determined.”3 At the time of sentencing before the district judge defendant was precisely within the exclusion. It follows that he was not an “eligible offender” to whom the Act could have any application. Meyers v. United States, 388 F.2d 307 (9 Cir. 1968). It is axiomatic, therefore, that the district judge had no discretion to sentence him under the Act and could not be guilty of failing to exercise discretion which he did not possess.4 The plain logic of the situation is not to be avoided by labeling the uncontroverted facts “fortuitous,” or to be diluted by vague notions of unfairness.
(1) an offender who is convicted of a crime of violence.
(2) an offender who is convicted of unlawfully importing or selling or conspiring to import or sell a narcotic drug, unless the court determines that such sale was for the primary purpose of enabling the offender to obtain a narcotic drug which he requires for his personal use because of his addiction to such drug.
(3) an offender against whom there is pending a prior charge of a felony which has not been finally determined or who is on probation or whose sentence following conviction on such a charge, including any time on parole or mandatory release, has not been fully served: Provided, That ■ an offender on probation, parole, or mandatory release shall be included if the authority authorized to require his return to custody consents to his commitment.
(4) an offender who has been convicted of a felony on two or more prior occasions.
(5) an offender who has been committed under title I of the Narcotic Addict Rehabilitation Act of 1966, under this chapter, under the District of Columbia Code, or under any State proceeding because of narcotic addiction on three or more occasions.”
(emphasis supplied).
The majority finds further error in the failure of the district judge to consider postponing sentence in order to permit defendant, through his counsel, to attempt some favorable disposition of the pending New York charges so as to qualify him as an “eligible offender.”5 I agree that there is “nothing in the *951statutory scheme that would prevent a district judge from continuing the sentencing procedure for a reasonable interval to permit a defendant to attempt disposition of a felony charge pending in some other jurisdiction, that would otherwise disqualify him from consideration” under the Act, but the logic for the leap to the conclusion that there was error in the failure, sua sponte, to consider if sentencing should be postponed eludes me. The district judge was not requested to postpone sentencing. Absent such a request, he reasonably retained sufficient docket control to set for final disposition a ease in which sentencing had already been postponed four weeks. This is not a situation where, even if a request were made, the district judge would be required to grant a continuance.
In essence, the Court now holds that, even in the absence of a request for a continuance, every district judge has the duty in every case to consider the postponement of sentencing to afford counsel an opportunity to create a state of facts which may influence the district judge in sentencing to give more lenient or more humane disposition. Must a district judge, therefore, on his own motion, consider postponing sentencing to permit or to require transfers under Rule 26, Fed.R.Crim.P., because he may make a more lenient overall disposition of the transferred cases than if they were disposed of in separate jurisdictions? Must a district judge, on his own motion, consider postponing sentencing of youthful offenders and insist that counsel obtain a birth certificate for each in the hope that, possibly, some offender may be shown to warrant disposition as a juvenile delinquent? The answers which the Court’s holding in this case suggests are, indeed, new and novel doctrine. To me the burden it places on district judges is insupportable.
This is a singularly inappropriate case in which to announce this new doctrine. The majority states, “[pjrobably New York suspended the one-year sentence because Williams had received a ten-year indeterminate sentence in the federal court.” I would venture the correction that New York undoubtedly did just that. Defendant had one previous conviction in New York for possession of marijuana cigarettes and three other convictions for offenses, at least one of which was related, in the sense that defendant sought funds to support his addiction. For each of the four convictions, defendant has served varying terms of thirty days to six months. From the fact of a suspended sentence without probation, to me the inference is inescapable that New York understandably surrendered her interest in the disposition of an offense against her law to the United States, in the belief of what federal disposition had been made. A different federal disposition may have motivated New York to adopt a more stringent attitude, with the result that defendant would not have been an “eligible offender” under other exclusions contained in § 4251(f). Resentencing, after the fact, on the basis of New York’s apparent leniency is neither warranted nor justified.6
I would affirm.
. The presentence report described the circumstances of these charges as follows:
“On July 5, 1967, at 7.Y5 a.m. at the Port Authority Bus Terminal, 625 8th Ave., N. Y. C., in the men’s toilet, the arresting officer observed Martin Fortson and Williams in one toilet booth. Williams had placed a liypodermic needle into his left arm and Fortson was standing next to him. Upon their arrest, Williams was found in possession of 58 glassine envelopes containing heroin, in his left front pants pocket. The charges against Fortson were dismissed on 7-5-67. Williams was released on $100.00 cash bail on August 22, 1967. He was indicted under Docket No. 3165-67 on 9-18-67 and due to his failure to appear in court a Bench Warrant was issued 10-13-67. At the time of his arrest, he gave his address as 699 Alabama Avenue, Brooklyn.”
After further review of defendant’s extensive record, the report stated: “He returned to New York City in July of 1967, became involved with the authorities, and that charge is still pending at this time.” (Emphasis supplied.)
. “(f) ‘Eligible offender’ means any individual who is convicted of an offense against the United States, but does not include—
. 18 U.S.C.A. § 4251(d) defines felony to include any offense in violation of a law of the United States classified as a felony under the Criminal Code and any offense in violation of a law of any state “which at the time of the offense was classified as a felony by the law of the place where that offense was committed.”
. The California decisions cited by the majority are inapposite. Even from their description in the majority opinion, it is apparent that, unlike defendant here, the convicted persons could have been sentenced under the California rehabilitation statute.
. The finding is actually two-fold. The majority also finds error in the failure of the district judge to exercise his discretion as to “whether to commit him to the custody of the Attorney General for examination under 18 U.S.C. § 4252.” How the latter could be error I fail to see. *951By its terms § 4252 permits a commitment to the custody of the Attorney General for study and report of “an eligible offender” believed to be an addict. Defendant was not, I repeat, an “eligible offender.” How the district judge could do what the law says he may not do or why he should be required to consider doing the impossible, I cannot surmise.
. The majority apparently seeks to avoid this unjustified advantage to defendant by likening the suspension of service of sentence without probation to a sentence not fully served. The legal effect would be to require New York’s consent to defendant’s disposition under the Act as a condition precedent to such disposition. How, and under what circumstances, defendant could be required to serve his suspended sentence I cannot visualize. I would conclude that defendant’s sentence, legally and for practical purposes, was fully served. This is the basis for my apprehension that defendant may be re-sentenced in derogation of the interests of New York.