709 F. Supp. 1062 | N.D. Ala. | 1989
ORDER
The court hereby ACCEPTS the Report and Recommendation entered by the Mag
MAGISTRATE’S REPORT AND RECOMMENDATION
T. MICHAEL PUTNAM, United States Magistrate.
Consistent with the ordinary practice of this court, the above-styled criminal cause was referred to the undersigned magistrate to consider and, where appropriate, resolve preliminary matters prior to trial. As part of that procedure, the magistrate conducted a pretrial conference at which it became apparent that a dispute exists between the Government and the defendant regarding the application of the Federal Sentencing Guidelines to the facts of this case. At the pretrial conference, defense counsel orally moved to submit the controversy to the magistrate on stipulated facts for a report and recommendation to the district judge. For the reasons expressed hereinbelow, the magistrate RECOMMENDS to the district judge that this procedure not be followed.
The defendant is charged in a nine-count indictment involving essentially three separate episodes of unlawfully selling stolen Department of Agriculture commodity cheese in return for Department of Agriculture food stamp coupons.
The procedure proposed by defense counsel has as its principal purpose the object of seeking a preliminary ruling on a sentencing question before an adjudication of guilt. Plainly, a sentencing question does not become ripe for consideration unless and until the defendant is actually convicted of one or more of the charges he faces. Necessarily, an attempt to resolve sentencing questions prior to an adjudication of guilt involves speculation by the court concerning which of the charged offenses the defendant might ultimately be found guilty of violating. To attempt to resolve a hypothetical issue of this sort involves a clear violation of the judicial doctrine of avoiding advisory opinions. Unlike the situation faced by this court in United States v. Allen, 685 F.Supp. 827 (N.D.Ala.1988), in which the court ruled on the facial constitutionality of the Sentencing Guidelines, this case involves a question of interpretation of the Guidelines under a very specific set of facts. Where those facts cannot be certainly and readily ascertained until after an adjudication of guilt, this court should not hazard a guess about its interpretation of the Sentencing Guidelines. See U.S. v. Quezada, No. 88 CR 204, 1988 WL 95373 (E.D.N.Y., Aug. 31, 1988).
Perhaps a greater problem created by this proposal is the danger it creates for a defendant’s considering the possibility of a guilty plea. If the magistrate were to undertake to enter a preliminary recommendation to the district judge on a question of interpretation of the Sentencing Guidelines,
For the foregoing reasons, the magistrate RECOMMENDS that the district judge reject consideration of any sentencing questions unless and until the defendant in this action is adjudicated guilty of one or more of the offenses with which he is charged.
Any party may file specific written objections to this report and recommendation within fifteen (15) days from the date it is filed in the office of the Clerk. Failure to file written objections to the proposed findings and recommendations contained in this report and recommendation within fifteen (15) days from the date it is filed shall bar an aggrieved party from attacking the factual findings on appeal.
. Counts One, Two and Three allege that on March 11, 1988 the defendant unlawfully received stolen commodity cheese and subsequently sold that cheese for food stamp coupons. Counts Four, Five, and Six allege a similar transaction on March 16, 1988 and Counts Seven, Eight, and Nine allege a third such transaction on April 21, 1988.