United States v. Robert B. Corson, Eugene J. McCullough Eugene J. McCullough
449 F.2d 544
3rd Cir.
1971
Check Treatment

*1 considering judgment circum- is that all of the “not woven was Konder negligi- eye- evidence, evidence,” impact included other stantial by three victims ble. identification witness Any robbery. as to doubt of the direc- Reversed remanded with eyewitness Konder identification of both petitions to dismiss of both tions by dispelled facts set Cannito Konder and Cannito. Identification sec- in the In-Court forth Mandate shall issue forthwith. opinion of the tion of the memorandum district court. federal evidence also

There was substantial guns

relating prior intro to the to their that he

duction. The sheriff testified guns in motel room occu

saw two subsequent by pied Cannito and Konder robbery, he described guns. that he The motel owner testified UNITED STATES of America gun in the motel saw room. concerning eyewitnesses testified CORSON, Robert B. guns types of used the robbers. And Eugene McCullough, J. cross-examination, testified Konder Eugene McCullough, Appellant. J. guns objection, he without had two No. 18862. described them as hereinbefore set guns giv description forth. Appeals, States Court of vary substantially did en Konder Third Circuit. given description from the the sher Argued Nov. guns appearance iff or from the Reargued May 11, 1971. introduced into evidence. Under these circumstances, Aug. 31, Decided is difficult how to see their actual introduction into evidence As Sept. Amended upon the could have had influence opin jury In in its determinations. our

ion, harmless error be

yond also a reasonable doubt. See Erv Sigler,

1969), denied, 397 cert. 90 S. (1970);

Ct. 25 L.Ed.2d 129 Turner

Cir.), denied, 27 L.Ed.2d Harrington California, supra,

395 U.S. at 89 S.Ct. at the Su-

preme Court stated: “We of course do jurors judg- not know the who sat. Our reading

ment must be our based on own

of the record and on what seems to us to probable impact

have been the

two confessions on the minds average jury.” judgment Our is based reading upon the of the record and on prob-

what to us seems to have been the impact,

able thereof, or lack of the in- guns troduction of the into evidence on average jury; minds of an and our *2 III, Clayton Undercofler,

J. Asst. U. S. Atty., Philadelphia, Pa., appellee. for Argued Nov. Judge, HASTIE, Before and Chief ADAMS,
McLAUGHLIN and Circuit Judges.
Reargued May 11, 1971. Judge, HASTIE, Before and Chief McLAUGHLIN, SEITZ, DUSEN, VAN ALDISERT, ADAMS, and GIBBONS Judges. ROSENN, Circuit Sept. 8, As Amended Judge, SEITZ, Before Chief and Mc- HASTIE, DUSEN, LAUGHLIN, VAN ALDISERT, ADAMS, GIBBONS ROSENN, Judges. Circuit OPINION THE OF COURT ROSENN, Judge. Circuit sentencing validity is the issue appeal. Appellant by jury convicted indictment, counts of an all based three armed a bank. Following post-trial appellant’s denial of motions, May he was sentenced as follows: 2113(a), I, Count under 18 U.S.C. § charging entering bank with years; to commit a —10 II, 18 U.S.C. 2113 Count also under (a), charging robbery of the bank— years, preced- with the consecutive ing sentence; 2113(d), III, Count under U.S.C. § charging attended dangerous jeopardizing life with weapon years probation, to serv- —5 expiration ed at the of the sentence of Count II. appeal taken, this court af-

An per curiam firmed the conviction Corson, opinion. August imprisoned, On while sought power appellant to invoke Rule Federal court under Procedure, Rudovsky, David “to correct Defender Rules of Criminal Ass’n of Philadelphia, Pa., illegal ap- time” mov- Philadelphia, sentence at pellant. ing for vacation of the sentences re- to consecutive have sentenced Prince and II. The I Counts under twenty years vacating robbery_ terms of sponded, entering, fifteen for unlawful on Octo- II III Counts under tences steal) (intent letting the “mental element the heavier stand ber merges completed if crime into the I. under Count *3 352 at is consummated.” U.S. I. there- at 407. The case was S.Ct. 77 court fore remanded to the district ap- question presented this The sole resentencing this “in accordance with peal district court’s Or- whether opinion.” S.Ct. 403. 77 constituted of 1969 der October generally Prince, Even it was before implementation proper of and lawful agreed among the circuits that defend holding Supreme in Prince Court’s given multiple ant could not be States, U.S. 77 S.Ct. 352 pun under the statute as Prince, bank 1 L.Ed.2d 370 single robbery.2 Congress’ ishment The bank in- Court held that it was disagreed great- tention, circuits have both before establishing in a series of Prince, however, theory after as to er and lesser offenses under upon which the of an errone robbery statute, correction pyramid penalties ously cumulative sentence should rest. Accordingly, therefor.1 the Court held Basically approaches have tak two error for the trial it was 2113: the relevant subsections of 18 For take, by intimidation, or fecting ing”]— other or both. another statute larceny [hereinafter imprisoned ciation, savings and loan association [herein- loan association and in violation of or commit Whoever enters or value with intent ings ment, savings after Shall be fined not more than or in any bank, and loan $100”], property money (a) Whoever, by (b) part possession care, Whoever takes and and loan “robbery”] ; from the thing “larceny or part exceeding sake of such bank or such care, thereof, any property or shall and loan possession or custody, or association, not more than any as a of value any savings custody, control, manage- of, association, clarity, of a building so person steal or bank, $100 bank, takes, force and fined not more than control, management, or or association used, any belonging to, attempts sum in any or “unlawful enter- any belonging to, or in such sav- we set out here or as a with intent or or bank, used in whole any money and loan asso- carries other twenty years, purloin, bank, savings or attempts presence violence, U.S.C. excess of $5,000 to enter building, thing [herein- or or savings or or away, or in any any any any any any af- or or or of Ekberg Coy rett v. United nom. 730, F.2d 270 (1st ings both. tion, be fined or jeopardy use Whoever takes in subsections or prisoned tempting ' imprisoned ten years, or both. shall “larceny $5,000 (d) Whoever, [hereinafter [*] 1939). F.2d 939 possession money McDonald v. United years, care, custody, control, e. exceeding of a be fined Johnston, assaults Cir.) Hewitt v. United to steal or or (10th of a 1948) ; the life of not more than not more than [*] loan association or Ward dangerous or imprisoned commit, sum both; L.Ed. (6th any of not more Cir.) $100 “aggravated any person, (a) and carries more than 95 L.Ed. any bank, den. 310 McDonald less committing, purloin, [*] other Cir.) L.Ed. 1565 or belonging cert. den. 340 any any person weapon than not more than than (b) offense thing cert. den. $1,000 (1940) Dur- [*] any property management, $100”], 631 or [hereinafter away, of this or twenty-five $10,000 or robbery”], or F.2d 380 inor to, any year, of value puts (1944) (1950) Moinet, ; defined or device inor [*] shall U.S. sav- sec- 183 sub im- at- or ; ; -merger clearly approximates and the intention of sen which most the in- en— tencing judge.3 tention at the time original sentencing. This Merger theory. The above- sentencing judge assumes that the clear- language quoted in Prince has ly intended to on the defendant circuits, including been read several penalty at least as severe a as that indi- own, requiring holding our They cated for have count. may validly permitted therefore stand heaviest charges that count penalty, irrespective of whether it was aggravated since, form the offense imposed upon aggravated the most theory, the less offenses They the counts. have therefore vacated “merged” into it ceased to exist longest.5 all sentences Gov- separate, punishable offenses.4 This urges approach, ernment which in theory urged by who, is the appellant, *4 affirming this ease would result in our urging if in successful a mechanical the lower court’s retention of the ten- application rule, en- this would be year prison term. prison titled to released be merely placed probation years. on for five II. 2. The court’s intention. Other cir- notably Eighth, using cuits, most A review the cases have these two adopted approaches striking approach that, a more flexible reveals the fact —that regardless used, approach retained should the re- be that yet States, (6th A few of the older eases have used Price v. United 193 F.2d 523 approach, holding that, by impos 1951) ; Hunter, a third Cir. Gebhart v. 184 F.2d upon (10th 1950) ; the first count of an 644 Cir. Remine v. United indictment, power” States, (6th Cir.) a court “exhausts its 161 F.2d 1020 862, (1947) ; sentence and that the sentences on den. 331 U.S. Hewitt v. subsequent supra States, (8th Cir.) ; are therefore United void. Durrett Hunter, (10th States, (5th Holbrook v. 149 F.2d 230 v. United 1939). 107 F.2d 438 Cir. 1945) ; Sims, Cir. United States v. F. 72 Supp. (D.C.Mo.1946). 631 Whateve Sawyer States, v. United 312 F.2d 24 rvitality this dubious doctrine once (8th 1963) Hardy ; States, Cir. v. United possessed destroyed by have has been (8th 1961) ; 292 F.2d 192 Cir. United States, 301, Green v. United 81 Leather, (7th States v. 271 F.2d 80 Cir. (1961), S.Ct. 5 L.Ed.2d 670 which 1959) ; States, Counts v. United 263 F.2d imposed retained the sentence on the sec (5th 1959) ; 603 Cir. United States v. ond of two bank counts rather Williamson, (5th 1958) ; 255 F.2d 512 Cir. than the sentence on the first. States, Purdom v. 249 F.2d 822 approaches, For a discussion of all three (10th Cir.) cert. den. 355 U.S. 78 Annot., see 59 A.L.R.2d 995-1008 (1958) ; S.Ct. 2 L.Ed.2d 273 Kitts (1958). States, (8th 243 F.2d 883 Cir. Welty, (3d 1957) ; United States v. 426 F.2d O’Keith v. 615 158 1970) ; Conway, (5th 1946) Cir. ; United States v. F.2d 591 Cir. Holbrook v. (3d 1969) ; (8th 415 F.2d 158 Cir. 136 F.2d 649 Cir. McKenzie, Holiday (3d 1943) ; States 1969) ; 414 F.2d 808 Cir. v. United 1942). 130 F. Chester, (8th United States v. 407 F.2d 2d 988 Cir. (3d Cir.) 53 Supreme may, arguably, cert. den. 394 U.S. Court have (1969) ; Lynch approach 23 L.Ed.2d 45 this in endorsed Green v. United (9th 364 F.2d 313 Cir. 1966) ; Bayless (1961). retaining In 5 L.Ed.2d 670 1965) ; 25-year ag- United States v. the lower court’s gravated robbery sentence on Machibroda, than either rather of two ; 1964) 20-year sentences, Trumblay, United States v. the Court concurrent “Plainly enough, the intention observed: DiCanio, (2d ; 1957) was to of the district twenty-five years Nirenberg, United States v. 242 F.2d 632 maximum sentence (2d Cir.) robbery, aggravated cert. den. and the procedure should not L.Ed.2d in his formal defect judgment.” employed merger Several his considered cases vitiate theory even before Prince. e. crimes, invariably uphold these two and therefore sentenc- been has almost suit ing judges often corre- and vacate heaviest spondingly also struck more severe this lighter One is sentences.6 pen- less inclusive offense. the rather convoluted Were the effect case, applied sort of alty provisions of 2113 have had be this § approach.7 (1) penalized for choice of a defendant would courts’ be the various having failed, entering with the in 2113 is offense most inclusive by twenty requisite (punishable robbery, offense also which years fine), prison in to have con- penalty. maximum heaviest carries larceny, (2) summated the would be re- has in which the defendant those cases having actually warded committed aggravated robbery as convicted been larency (punishable more than offenses, the the lesser included well (3) prison fine), and a generally “merger” theory has worked handsomely more would even reward- pyramiding an erroneous to correct well if, having despite ed committed the lar- the heaviest sentence Since sentences. ceny, garnering he was unsuccessful aggra- usually imposed on the (in case, loot excess of he $100 count, has done little violence vated year could sentenced sentencing judge the intention of fine). prison and Because ground uphold that sentence anomaly, merger theory, because merged into the most the lesser offenses *5 great situation, applied in do this would longer and no formed a inclusive offenses violence to the intention of the sentenc- sentencing.8 proper basis for ing court, courts have understand- been great difficulty with Courts have had ably merger theory apply reluctant to the merger theory, however, in the cases to this sort of case. the was not more severe imposed on There has a common the most variation inclusive offense. situation, arising (as this Typically, instant cases have involved two such entering case) when, despite a on an for intent conviction

counts —one with the years aggravated larceny.9 punishable and to commit a one for judge prison fine, Congress problem and a the trial has The arises because has imposed the heaviest sen- penalty for nonetheless authorized a much heavier entering, tence on counts. The unlawful the one lesser inclusive of less right examples of a will firmed “the the court 6. Two suffice. In United simply McKenzie, supra (“merger”), v. vacate the shorter situation to States longer years stand. tence allow the one to tiie defendant was ten and sentenced to ” ** * years robbery, larceny, F.2d at and 194. for seven for twenty years aggravated count, all robbery ag- in footnote As noted concurrently. three sentences to be served pris- robbery carry potential gravated both “it This court held that to sen- was error great for on terms at least appellant two, tence on counts entering, entering (unlawful unlawful because, sentencing purposes, for offenses aggravated years; robbery, years; rob- (b) (a) under sections the Federal of Larceny, bery, years). on the other Robbery merged Bank Act become poten- significantly hand, lower a carries aggravated the more offense section under years (10 or, prison in some term tial (d).” Thus, at 811. the heavi- year). cases, only one penalty Hardy was retained. In v. est States, supra (“court’s intention”), See, g., v. United e. Prince Conway, twenty Welty, v. United States the defendant was sentenced to v. States McKenzie, years entering years States lar- v. and ten ceny. (United Bayless Williamson, Chester, Pur- v. United States Machibroda, and Kitts v. United dom States substantially supra. Trumblay, supra, present all all States situations.) upholding the identical States, supra, Hardy longer sentence, despite e. the technical in footnote “merger” entering cited the cases and 6, the into a of offense supra. larceny Eighth itself, reaf- Circuit similarly apply to courts have refused crimes. Prior the amendment to merger theory possible money to case.10 to enter bank and steal this sort of during the till distraction of reason, prior had This court has violating It teller without federal law. case, question this wisdom interpreting was in context of Con- this Conway, merger theory, Welty, Mc- gressional create lesser includ- Kenzie, situa- and Chester all involved increasing ed offenses without the maxi- application in which the of that tions penalty mum for the most of- inclusive theory not lead re- did to the mischievous fense that the Court stated: case, sults above. This outlined entry plainly provision reveals inherent unlawful “[T]he difficulties approach. in that found inserted to cover the A defendant situation where a guilty person purpose enters bank for committing judge whom intended crime but is frustrat- completing a sentence of no than 15 ed for reason less some before years gravamen plus probation incur would the crime. of the of- entering. years probation be- fense is not the act of sanction * * * cause the district There- Rather the heart of the erred. crime fore, compelled we have been reexam- the intent steal. This mental ele- merger underpinnings merges ine completed ment into crime theory. Upon go all consideration consummated. To if beyond authorities, reasoning compel relevant we concluded us would merger theory Congress intended, by is inconsistent find that judicial ought amendment, with sound policy to make drastic changes hereafter punishments. followed. in authorized This we cannot do.” 352 (Italics added). S.Ct. at III. language, however, doWe not read this from the stems *6 reflecting either as the common doc- law Supreme Court’s decision in Prince v. merger offenses,11 trine of hav- or as supra. There, the Su- ing analogous, new, formulated some preme Court was faced with a situation “merger” doctrine. at Since the evil in which the district court had sentenced pyra- which Prince directed was the single a defendant convicted of a bank miding sentences, we see no to reason years for “merger” language ascribe to the above entering for to be served con- wholly gratuitous limiting the effect of secutively. Interpreting statutory a sentence the most inclusive count. ambiguity scheme to resolve necessary Such an effect is neither leniency Supreme favor of held Court holding effectuate, required by, nor that when it established lesser included in the case. Robbery Act, in the Bank offenses Con- merger theory rejected, If the is to be gress permit pyra- not did intend to imposed how then should sentence be miding penalties single a multiple when there are aris- convictions robbery. Congress In 1937 had amended robbery? out of a bank Robbery plug the Bank Act of 1934 to glaring loophole by making en- unlawful The obvious to the alternative try larceny merger approach implicitly from a federal is the Sawyer States; felony misdemeanor, 10. See e. the misde- Leather, supra, Coy merges both into the meanor Johnston, punished only can defendant apply States, supra. and Holbrook doctrine does not latter. here, where, both offenses are felonies. See, generally, Criminal Law 22 C.J.S. Accord, supra. Purdom v. United pp. 42-46. § doctrine, if Under of offenses criminal act same constitutes both 1963); 3651; mandated eases, the “court’s intention” 18 U.S.C. cf. Aderhold, would allow the district which Miller v. 288 U.S. 53 S.Ct. any (1933). sentence on one of L.Ed. Unfortunate- ly, counts, plus suspen- one.12 on more than on one sentence count reject approach well, probation We must sion of sentence with on the approach part remaining counts, creating appeal- because while actually remedy pyramiding judgments every conviction, does not able problem at which Prince was directed. prohibition the same time violates against pyramided sentences established Since the convictions the various in Prince. “merge” ap- would under this proach, presumably the defendant would reject single- must also We appeal be entitled to his conviction on approach there are sit because so, all the To counts. enable him do uations in which it would lead results judgment would have to be entered on as anomalous as those which would be entry ap- each of them. The of a valid produced by merger approach pealable judgment of conviction on each example, instant case. For were this required that sentence be appeal only court on an to reverse (For purposes determining thereon. supporting conviction the one sentence appealability, the term “sentence” in- prison which a had im term probation suspension cludes posed, the district court would be unable imposition penal other sanctions. salvage original subsequently to its sen Korematsu v. United 432, transferring prison tence 63 S.Ct. 87 L.Ed. 1497 to one of the other which counts on judgment (1943).) “Final in a criminal probation imposed. had been Rule 35 of case means sentence. sentence is the the Federal Rules of Criminal Procedure judgment.” Berman v. United provides remedy, expressly since it “illegal” limited to the sen correction of L.Ed 204 See Federal Rules tences, and valid the law is clear that a 32(b). Thus, Criminal Procedure in ad- once it has altered imposing dition to a sentence appeal been affirmed on and become count, the court also would im- final. Castle v. See pose, very least, probation at the on the 1968); Pug 647-648 remaining counts, “judgment (1st liese v. United 353 F.2d 514 suspends imposing pro- sentence without 1965); Tuffanelli, United States v. improper nullity.” bation and is a *7 981, (7th 1943). 138 F.2d 983 Cir. Even Fried, 784, United States v. 436 F.2d 787 fundamentally, more the trial re- court’s (6th 1971); Cir. see Ex Parte United sentencing the defendant on one of the States, 27, 72, 242 61 L.Ed. U.S. 37 S.Ct. remaining counts would violate dou Ellenbogen, (1916); 129 United v. States jeopardy clause of the Fifth Amend ble (2nd Cir.), 390 F.2d 537 cert. den. 393 parte Lange, (18 ment. Ex 85 U.S. 918, 241, 89 21 206 L.Ed.2d S.Ct. 163, Wall.) (1874); 21 L.Ed. 872 United (1968); Sams, United States 340 F.2d v. Benz, v. States 282 U.S. 51 S.Ct. (3rd Cir.), 1014 cert. den. 380 U.S. (1930); 354 (1965); 75 L.Ed. L.Ed.2d 270 14 Graham, Welty, supra; Ekberg States v. 325 F.2d 922 v. nothing object language that, 12. “[Tlliere in the related in their or nature operability suggest case, of under the of [§ 2113] that doctrine the Prince sen- entry may larceny], only either [unlawful or tence be out where meted on one of present situation, them, both have been within the which was choice the trial deprived identity appropriate intended to be its court deems of or the circum- making Hardy status as a basis stances.” 292 violative charges; that, respect (Emphasis supplied). to the im- F.2d at 194 posing punishment they them, of on are so

551 1948).13 1954). (1st believe, 380 Cir. that F.2d Cir. We 167 single-count sentencing necessarily inapplicable Rose is Inherent to bank very therefore, pos robbery cases, multiple procedure, real where sentences despite sibility of of one are that the reversal count forbidden a conviction on robbery indictment more than one count. a multi-count bank Even Fifth effectively Circuit, general defendant immunize a has could which declared only illegal intended sen the district court’s tences not “undesirable” but “unavoidably imprisonment altogether, recognized excep- of an tence has justice.” miscarriage result in an overall Hall tion. v. 356 F.2d (5th 1966). imposition illen McM Cir. (1st 1967) den. general Cir. cert. particularly one sentence seems 20 L.Ed.2d suited to the mandates of Prince. In the (1968). imposition hereafter, we see sentences insuring no other means all cases reasons, we think that For these imposed validly that sentence on be implementing only practicable way of defendant who stands convicted after general Prince is to violating appeal of more or subsec- exceeding all for a term on counts Robbery tions of the Bank Act.15 permissible that on maximum greatest maxi count which carries be rever Should there IV. mum sentence. counts, more there would sal of one or case, In this the trial court er imposi court’s no the district bar to roneously separate on sentences long it did of a sentence so tion new impossible all three counts. It is authorized maximum exceed the say that certain of these sentences remaining Moreover, counts. “illegal” than rather others were under jeopardy prob double there would Rather, Rule was the cumulation long sentence was lem so new sentencing sentences, in its entire imp originally or less than that same as ty “illegal.” It therefore osed.14 merely error the district has, for that Court areWe aware II vacated sentences reason, good expressed a dissatisfaction standing and III and to have left sen general declared sentences

with Thus, I. tence all “highly the trial desirable originally invalid were imposing indictment ought vacated in their en have been containing one count deal than more appellant tirety, so could then be separately each count.” (3rd Rose, resentenced.16 215 F.2d States ; 1971) Spears, opposite 13. Two cases which reach conclusion, McMillen v. United see F. Kitt den., (1st 1967), Phillips 1943) 2d 842 1926), 20 L.Ed.2d Biddle, do procedure parte Lange, does this Not and we find their mention Ex *8 sentence, every require reasoning unpersuasive. a correction imposition the also sanction initial it prorated general a not sentence is Since illegal See e. United of an sentence. among counts, Vautrot v. the various 978, White, 440 F.2d v. States F.2d 740 Roeder, v. Von States 1944), reimposition of the same sentence 1004, F.2d 1010-1011 sen- increase in would not constitute 1970) . though spread it over tence even fewer counts. expressly resentencing remedy is 16. The by Prince, U.S., 329, required authority permitting 15. There is some 403, 370; cf., impose L.Ed.2d to concurrent the court district (D.C.Cir. Parker, 442 F.2d 779 then States 1971) sentences each count and vacate ; Bryant 135 U.S. the becomes all but one when conviction 138, App.D.C. appeal. States after final upon af- by of a mandate issued to the court remanded therefore be The case will judgment (1) or dismissal court, firmance of the directions the district with ”* * * 21, 1969, (2) appeal. of the of October vacate its Order origi- multiple sentences to vacate days Thus, our after it received (3) proceeding in nally imposed, pursuant af- to our 1968 mandate issued 43, conformity a Rule conviction, McCullough’s firmance of general three not on all sentence modify power sen- district court’s originally year ten exceed the expired. Yet, more tence on Count imposed on I.17 count 1969, year later in October than a that sentence district court vacated Judge (dissenting). HASTIE, Circuit that action. this court sanctions now I dissent because I believe the law does arises of this be- The dilemma ease permit long of the dilemma solution so as the valid sentence cause force, sanc- this case that this court is now in the sen- 3 shall remain Count tioning. charging lesser 1 and tences Counts upon parts the total crimes based years probation that The sentence of 5 charge in covered transaction the district court on Count 3 invalid. Heflin v. United Count are for the most of three crimes States, 1959, 415, 79 charged present indictment was is mistake When such a 3 L.Ed.2d 407. beyond sentence, a lawful be- doubt as I days after within 120 discovered recognize. lieve all members of the court days dis- after tence or within 120 conviction, After this court affirmed the received a mandate trict court has the case returned reviewing court that has sustained a to the district court and that sentence resentencing conviction, comprehensive a year later, A district became final. power judicial control and is still within undertook to court set aside order Thus, the district of correction. on another that validate power valid but to vacate the would have lawfully could coexist with it. sentence, permitted yet final my understanding It is of the law that in- the otherwise and then let Rule sentencing modify judge’s power valid sentence stand. valid sentence he has is of limited duration. At common law and is true when the mistake same system adoption appeal. our federal before the discovered on direct The review- present of Criminal Proce- Rules cor- court can remand the case for dure, power expired with the rele- rection of sentence since under Rule vant term of judicial power court. United States v. or the sentence correct Mayer, 1914, yet expired. has not sentences 129; Chester, 59 L.Ed. ex rel. example, States 3rd Quinn Hunter, 7th Cir. is not But Now, power court’s confronts us. that now situation regard dissent, For, pointed is defined and limited in this out earlier restricting judicial McCullough’s provision of period Rule 35 within which power to a to reduce a valid sentence vacat- valid on Count 3 could be days changed long time “within 120 after sentence ed or otherwise days receipt imposed, or within 120 run. addition, resentencing fixing penalty alternative cretion anew fully protects rights simply among of the de need not choose imposed. duty present originally

fendant. The defendant must be “Its *9 resentencing just original at a as if an to resentence rather than vacate one [is] part part being imposed. were Williamson and reinstate another original sentence.” Williamson v. United supra at 238. cir. Fed.R.Crim.P. 43. Further more, resentencing defendant dis parte Lange, 17. Ex cited and the cases required therewith, supra. trict court to exercise its dis- it, majority error, as I see treating sentenc- opinion all three lies originally voidable, even es sentence, in- the offense valid charged offenses, had lesser cluded pos- final. I have considered become avoiding sibility this conclusion originally viewing punishment im- McCullough

posed upon defec- as a entirety sentence, correctible as

tive orig- way result that will achieve the

inally But here the indictment intended.

charged crimes three three distinct

separate and three consecutive imposed for these deny procedural

three To crimes. actuality to reach for a desira- would be instrumentality through

ble result Therefore, un- palpable I am fiction. escape are that we

able to the conclusion sentences, one val- with three confronted unchangeable, two

id the other and now insalvageable.

invalid and my view, is, entitled prisoner seeking, remedy

precisely relief he is I do not invalid sentences. the two sentencing pro- object the method

posed by the court for the avoidance problems case in the future. High

NORTON COMPANY Edwards Limited, Vacuum International Plaintiffs-Appellees, CORPORATION,

The BENDIX Defendant-Appellant.

No. Docket 35621. Appeals, States Court of

Second Circuit.

Argued June Sept.

Decided