United States v. Henry

709 F.2d 298

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 28, 1983
• Docket: Nos. 81-4107, 81-4254
• Status: Published

Opinions

RANDALL, Circuit Judge:

We are called upon to affirm or reverse the judgment of the district court increasing a valid sentence — which this court affirmed long ago and which the defendant here had already begun to serve — solely because the defendant had successfully challenged, under rule 35 of the Federal Rules of Criminal Procedure, another sentence that had been imposed in connection with the same criminal transaction.¹ The case arises indirectly out of a twenty-minute machine gun and tear gas shoot-out between certain members of the so-called Republic of New Africa and state and federal officers on August 18,1971. Its resolution turns on the meaning of rule 35, the present-day codification of the old common-law motion to correct an illegal sentence. For the reasons set out below, we vacate the district court’s order and remand the case for further proceedings.²

1. THE FACTS.

Although this case has been before us in one form or another virtually constantly for the past eight years, the facts relevant to this particular appeal can be readily summarized.

For his various activities in connection with the shoot-out of August 18, defendant Richard Bullock Henry was convicted in the district court of, first, conspiring to assault federal officers and to use a firearm in the commission of a felony in violation of 18 U.S.C. § 371 (1976); second, assaulting and interfering with federal officers in violation of 18 U.S.C. § 111; and third, using a firearm to commit a felony in violation of 18 U.S.C. § 924(c)(1).³ The trial court sentenced Henry to five years on the first conviction, seven on the second, and five on the third, but since the first two sentences were concurrent the total sentence was seven plus five, or twelve years. Henry duly appealed his convictions and sentences under all three charges. This court affirmed them all in an opinion dated March 19,1976. United States v. James, 528 F.2d 999 (5th Cir.), cert. denied, 429 U.S. 959, 97 S.Ct. 382, 50 L.Ed.2d 326 (1976). This court’s mandate affirming “[a]ll [of Henry’s] convictions” issued the same day, and Henry began to serve his sentences on or about December 29, 1976.

There matters remained until 1978, when the Supreme Court handed down its opinion in Simpson v. United States, 435 U.S. 6, 98 S.Ct. 909, 55 L.Ed.2d 70 (1978), and this court handed down its opinion in United States v. Shillingford, 586 F.2d 372 (5th Cir.1978). As it was first interpreted (over a vigorous dissent) in Shillingford, Simpson prohibited the government from charging a defendant with violating both section 924(c)(1) and section 111 because both statutes proscribe essentially the same conduct and because, as a matter of statutory construction, Congress had not intended that both apply at the same time. In the footnote that provoked the dissent, this court further noted in Shillingford that the district court on remand would not have to confine itself to vacating the sentence under section 924(c)(1), but could choose, at its option, to vacate either the section 924(c)(1) or the section 111 sentence. 586 F.2d at 376 n. 7. Taking note of the Simpson decision, Henry filed under Federal Rule of Criminal Procedure 35 a motion to vacate his sentence under section 924(c)(1). He insisted, however, that the district court did not have the option of vacating either the section 924(e)(1) or the section 111 sentence, but rather had the power to vacate only the sentence that he was challenging as illegal, i.e., the section 924(c)(1) sentence.⁴

The district court decided Henry’s rule 35 motion on March 7,1979. The court’s short, two-page order cited Shillingford and vacated Henry’s seven-year sentence under section 111. This left intact his five-year consecutive sentences under sections 371 and 924(c)(1), which meant that his over-all term of imprisonment had been reduced from twelve to ten years. Henry immediately appealed, but a panel of this court affirmed on the ground that it was “controlled by the directions” of the earlier decision in Shillingford, which had authorized the “either” approach to the problem. United States v. Henry, 611 F.2d 983, 984 (5th Cir.1979). Henry then filed a timely petition for rehearing en banc.

After we had voted for the first time to hear Henry’s case en banc but before oral argument could be scheduled, the Supreme Court handed down its decision in Busic v. United States, 446 U.S. 398, 100 S.Ct. 1747, 64 L.Ed.2d 381 (1980). Busic held, in essence, that Henry and the dissent in Shil-lingford had been correct, and that when a defendant engages in conduct that arguably violates both section 111 and section 924(c)(1), he may be convicted and sentenced only under section 111. This en banc court accordingly vacated Henry’s “sentence” and remanded the case to the district court for further proceedings consistent with Busic. United States v. Henry, 621 F.2d 763 (5th Cir.1980) (en banc).⁵

On March 20,1981, the district court rendered the judgment from which Henry now appeals. The judgment in effect proceeded in three steps. First, it vacated the five-year sentence under section 924(c)(1) and reinstated the seven-year sentence under section 111, thus leaving Henry with concurrent sentences of five and seven years for a total of seven years. Second, upon an oral motion from the government, it altered the seven-year sentence to have it run consecutively with the first, for a new total of twelve years. And third, it reduced the seven-year sentence to five years, for a final effective total of ten years. In so doing, the district court specifically acknowledged that this court, in remanding the case for sentencing in accordance with Busic, did not vacate the sentence imposed under count two of the indictment or the entire sentence imposed under all three counts. The court also acknowledged the government’s concession that Henry had attacked only the legality of his sentence on count three.⁶ The district court embarked upon its three-step procedure, it said, in order to carry out its original sentencing intent, which was that the defendant be seriously dealt with in accordance with the seriousness of his crimes.

Henry again appealed to this court. He did not challenge the district court’s power to reinstate the original sentence under section 111, but he insisted that that was all the court could do. He particularly urged that the court could not alter the original seven-year sentence under section 111 by making it consecutive with that under section 371 because the court did not have jurisdiction to increase a sentence that was, in fact, perfectly legal. The panel disagreed and held that if one sentence in a multipart sentencing scheme is illegal, then the entire scheme is illegal and may be altered according to the discretion of the trial court. 680 F.2d at 412.

Henry then successfully petitioned — for the second time — to have his case reheard by the full en banc court. He continues to argue that the district court had no jurisdiction to alter the legal sentence under section 111, which he had already begun to serve and which he had never even challenged. The government, on the other hand, argues that the allocation of years between the parts of any multipart conviction is largely fictional, and that judges really sentence defendants for criminal transactions, viewed as a whole, and not merely for the various hypertechnically defined components of a multipart verdict of conviction. Strict adherence to the original allocation of years between the various offenses, runs the government’s argument, could easily result in giving Henry an ill-deserved three-year windfall by virtue of his appeal. (Three years is the difference between the ten-year sentence that the government thinks Henry deserves, in light of the sentencing court’s original intent, and the seven-year sentence Henry thinks he is required to be given if his section 924(c)(1) conviction is vacated in accordance with Basic.) In the government’s view, the point is not that the effective number of years that Henry is required to serve under the first two convictions has been increased from seven to ten years; rather, the point is that the sentence for the entire transaction has been reduced from twelve to ten years. Henry has been rewarded, not penalized, for bringing his motion under rule 35. This view, the government concludes, does no more than take into account the day-to-day reality of how most trial judges actually pass sentence.

We disagree. We think that experienced federal district judges are well aware that they cannot revise upward sentences on counts, already affirmed on appeal, when other counts are vacated under rule 35, and that they take this fact into account in constructing their overall sentencing schemes. However, even if we concede, arguendo, that the government’s view of what goes on in the heads of many sentencing judges is correct, we are not willing to concede that the three-year decrease in Henry’s total sentence in issue here is an undeserved “windfall reduction.” On the contrary, we think that it is the lawful result of a successful challenge to an illegal sentence. We also think that it would be inappropriate to create out of whole cloth what would amount to a government right to cross-appeal in sentencing cases, and that, under circumstances such as those present here, a final and lawful sentence cannot be increased.⁷ We therefore hold that because there is no statutory or other authority for what the district court did in this case, its judgment must be reversed. II. THIS COURT’S PRIOR MANDATE AND THE LAW OF THE CASE.

The present case has arisen under Henry’s rule 35 motion to correct his illegal sentence under section 924(c)(1). Authority to correct the sentence imposed for the same criminal transaction under section 111 must therefore be found, if at all, in our prior mandates in this case, in the text of the rule, or in some other “inherent” power of the courts. For reasons which, we hope, will quickly become apparent, the problem is best approached by starting with our prior mandates, then turning to the history of the rule, and ending with the rule itself.

Because the government urged at oral argument that our en banc opinion and mandate in this case, see 621 F.2d at 763, vacated all three of Henry’s sentences— thus giving the district court the authority to enter the increased sentence under section 111 — the threshold issue in this case⁸ concerns the meaning of that opinion and mandate. We note at the outset, however, that the panel that initially decided this case last year (680 F.2d at 403), the district court (see note 6, supra) and the government’s panel and en banc briefs (four in number) have all assumed, expressly or implicitly, that our prior mandate gave the district court no authority to increase Henry’s sentence under section 111. Indeed, the government addressed this issue for the first time in response to questioning at oral argument. We think it plain that the issue has not heretofore been addressed because it is so clear-cut: our prior en banc mandate simply cannot be read as the government now urges us to read it.

We handed down our first en banc opinion in this case on July 16, 1980. 621 F.2d at 763. A mandate with virtually identical wording issued twenty-three days later:

It is now here ordered and adjudged by this Court that the sentence of the said District Court in this cause is hereby vacated by the Court en banc; and that this cause be and the same is hereby remanded to the District Court for further proceedings consistent with the decision of the United States Supreme Court in Busic v. United States, 446 U.S. 398, 100 S.Ct. 1747, 64 L.Ed.2d 381 (1980).

(full citations supplied). We think that a vacation of “the sentence” in light of the Supreme Court’s decision in Busic meant only that the sentence under section 924(c)(1) was vacated.

An analysis of the Supreme Court’s decision in Busic compels this reading. Busic held that if a federal criminal statute provides its own use-of-a-weapon sentence enhancement provision, a sentence under the general enhancement provision, section 924(c), cannot be imposed. 446 U.S. at 404, 100 S.Ct. at 1751. Our vacation of Henry’s “sentence” in light of Busic, as the district court expressly recognized,⁹ thus can only have mandated a vacation of that which was impermissible under that case, namely, the imposition of a sentence under section 924(c)(1). Furthermore, since the Supreme Court’s earlier opinion in Simpson had held that a sentence under both the general and a specific enhancement provision was illegal, 435 U.S. at 16, 98 S.Ct. at 914, Busic also necessarily stands for the proposition that a sentence under the specific provision (here, section 111) is legal and cannot be vacated. 446 U.S. at 404-07, 100 S.Ct. at 1751-53. Our earlier remand for “proceedings consistent with” Busic thus directed the district court to reinstate (or acknowledge the continuing validity of) Henry’s section 111 sentence.

We recognize that footnote nineteen of the Supreme Court’s opinion in Busic adverted to the possibility of an increased sentence under section 111 on remand, but we do not think that this reference undermines our analysis here. Footnote nineteen reads:

The Government makes a conditional plea that should we find § 924(c) to be inapplicable to [Busic] we vacate not only the § 924(c) sentence[], but also [that] imposed by the District Court under § 111.... The Court of Appeals has not considered this contention ... and we are reluctant to do so without the benefit of that court’s views. Accordingly, we express no opinion as to whether in the particular circumstances of th[is] case[] such a disposition would be permissible.

446 U.S. at 412 n. 19,100 S.Ct. at 1756 n. 19. The Court pointedly refused to consider whether Busic’s section 111 sentence could be altered. We therefore think that the reference to Busic in our en banc mandate — which may perhaps be read as containing an implicit reference to the possibility of resentencing under section 111 — cannot be fairly construed as actually vacating Henry’s section 111 sentence to permit an upward resentencing on remand. If we had intended to do what the Supreme Court’s opinion in Busic refused to address, we would have done so specifically.

Busic did, moreover, come to the Supreme Court (and to the Third Circuit on remand) in a completely different procedural posture than that in which Henry has come to us. See United States v. Busic, 639 F.2d 940 (3d Cir.1981), on remand from 446 U.S. 398, 100 S.Ct. 1747, 64 L.Ed.2d 381 (1980), cert. denied, 452 U.S. 918, 101 S.Ct. 3055, 69 L.Ed.2d 422 (1981). Busic was a direct criminal appeal, and Henry is not. This difference is noteworthy because it means that the government had an additional hurdle to overcome in Henry that it did not have in Busic. Because Busic was a direct appeal, and because Busic’s attorney noticed an appeal from the entire “judgment of conviction and sentence entered in th[at] action,” United States v. Busic, Criminal No. 76-137 (W.D.Pa. record entry for Mar. 11,1977), all of Busic’s sentences were arguably before the Supreme Court and the Third Circuit on remand.¹⁰ The only authority that the government cited to the Supreme Court for its position on resen-tencing under section 111 was 28 U.S.C. § 2106 (1976). See Brief for the United States at 60 & n. 36, Busic v. United States, 446 U.S. 398, 100 S.Ct. 1747, 64 L.Ed.2d 381 (1980) (only mention of procedural issue in brief confined to short discussion of section 2106). Section 2106,¹¹ by its express terms, applies only to judgments and orders of a district court that have already been “lawfully brought before [the appellate court] for review.” 28 U.S.C. § 2106. Because all of Busic’s sentences were arguably before the Supreme Court and the Third Circuit on remand, reliance by the Third Circuit on section 2106 as authority for vacating Bu-sic’s section 111 sentence and for resentenc-ing was arguably appropriate.¹²

Procedurally, Henry is a different case. At oral argument, the government argued that the 1980 en banc court, relying sub silentio on section 2106, vacated Henry’s unchallenged (and lawful) section 111 sentence. The government in effect argues that in challenging the district court’s order of March 7, 1979 — the order that vacated the unchallenged section 111 sentence and left the challenged section 924(c) sentence intact — Henry placed all of his sentences in issue, thus authorizing the 1980 en banc court to use section 2106 to vacate the original section 111 sentence for an increase on remand. The government’s argument really amounts to a contention that one who complains about a district court’s wrongful tampering with a final sentence gives the court of appeals jurisdiction under section 2106 to, in fact, tamper with that sentence. Whatever the answer to this argument— and we need not answer it today — we think it exceedingly unlikely that the en banc court in 1980 would have skipped over so substantial a problem without at least referring to it. This strengthens our conclusion that the 1980 mandate provided no authority to the district court to vacate Henry’s original section 111 sentence and to reimpose a longer one.

This conclusion necessarily means that the order of the district court currently before us, that of March 20, 1981, has violated the original mandate of this court (on Henry’s direct appeal) affirming all of Henry’s convictions.¹³ The principle that a district court may not violate the mandate of a circuit court of appeals and may not alter the law of the case so established is basic.¹⁴ The cases establishing it in this particular context are old, but their validity can hardly be questioned. When a judge of the Southern District of New York attempted, in a like case, to change the duration of a series of six-year concurrent sentences, the Second Circuit commented:

Now we understand it to be well-established law that a judgment which the appellate court has affirmed, and by its mandate directed the court below to enforce, cannot thereafter be altered in any way by the lower court.

United States v. Howe, 280 F. 815, 820 (2d Cir.) (citing In re Sanford Fork & Tool Co., 160 U.S. 247, 255, 16 S.Ct. 291, 293, 40 L.Ed. 414 (1895)), cert. denied, 259 U.S. 587, 42 S.Ct. 590, 66 L.Ed. 1077 (1922). Some years later, in a case apparently brought on a common-law motion to correct sentence but otherwise virtually identical to the present case, the Seventh Circuit had occasion to look for contrary authority and was unable to find any:

We have made a careful search for and study of cases and we have found none which has upheld the authority of a trial court to change or alter a lawful judgment after affirmance by an appellate court, and we might add that we have found no case which sustains the authority of this court to give such a direction.

United States v. Tuffanelli, 138 F.2d 981, 983 (7th Cir.1943); accord, Pugliese v. United States, 353 F.2d 514, 516 (1st Cir.1965) (same, under rule 35). We, too, have searched for authorities that might establish the power of the district court to alter the law of the case in circumstances such as those in this case, and there appear to be none. See 18 C. Wright, A. Miller & E. Cooper, supra n. 14, § 4478.

In sum, our 1980 opinion and remand in light of Busic gave the district court no authority to tamper with the sentence under section 111 because Busic had held that the section 111 sentence was legal and the section 924(c)(1) sentence was illegal — and rule 35 authorizes the vacation only of illegal sentences. The effect of our 1980 en banc mandate was to leave intact our 1976 panel opinion and mandate affirming Henry’s sentence under section 111. Certainly our 1980 mandate conferred on the district court no greater authority.

III. THE INHERENT POWER OF THE COURTS AND RULE 35.

If we assume, arguendo, that the district court’s section 111 order of March 20, 1981, was not. prohibited by our prior mandates and that it was not authorized by those mandates, then we look to see whether that order could have been entered pursuant to some inherent authority of the district court or to authority conferred by rule 35. We now turn to those questions.

A. Inherent Power and the History of Rule 35.

The government has stated on this appeal that “[although the history regarding the drafting of rule 35 is ... sparse, there is nothing in that history to suggest” that the district court could not resentence Henry under section 111 after his successful challenge to his sentence under section 924(c)(1). We find that the opposite is true. There is a great deal in the history of rule 35 to suggest that the district court could not lawfully resentence Henry under section 111.

The portion of rule 35 that is directly relevant to this case is subsection (a), which reads in pertinent part as follows: “The court may correct an illegal sentence at any time.”¹⁵ It was first promulgated in 1946 pursuant to the Act of March 8,1934, ch. 49, 48 Stat. 399 (current and virtually unamended version at 18 U.S.C. § 3772 (1976)), which, unlike many rules enabling acts, authorizes the Supreme Court to put postverdict procedural rules into immediate effect without first submitting them to Congress for approval or possible veto. See 327 U.S. 821-25, 854-56 (1946) (promulgating the rule). The rule’s only “legislative” history therefore takes the form of Advisory Committee notes and drafts. And like the Supreme Court in McCarthy v. United States, 394 U.S. 459, 465-67, 89 S.Ct. 1166, 1170-71, 22 L.Ed.2d 418 (1969) (extensively relying upon Advisory Committee notes for interpretation of Fed.R.Crim.P. 11), we have found the Advisory Committee materials quite helpful.

The original version of the rule had two parts. The first, as quoted immediately above, gave the courts the power to correct an “illegal sentence” at any time; the second (now set forth in subsection (b) of the rule) gave the courts the power to reduce a legal sentence within sixty (now 120) days. 327 U.S. at 856. The official Advisory Committee note to the rule then states only that — except for the insertion of the sixty-day period for the old term-of-court limitation in what is now subsection (b) of the rule — both parts of the rule “continue[ ] existing [decisional] law.” Advisory Committee Note to Rule 35, reprinted in 18 U.S.C.App. at 1461 (1976). The various printed preliminary drafts give no further guidance beyond the addition of a treatise citation for the reference to “existing law.” Advisory Committee on Rules of Criminal Procedure, Federal Rules of Criminal Procedure, Second Preliminary Draft 132 (1944) (citing 5 G. Longsdorf, Cyclopedia of Federal Procedure § 2468 (1929)).

A careful interpretation of the rule must therefore necessarily rest upon both the text itself and upon an understanding of “existing law” as it stood in 1946. If there was no inherent power in 1946 to do what the district court in this case has done, then there also is none today.

The authorities on this point leave virtually no room for doubt. See generally 5 G. Longsdorf, supra, § 2468; 5 L. Orfield, Criminal Procedure under the Federal Rules §§ 35:1 to :3, at 455-64 (1967) (sub-chapter entitled “The Law Before Rule 35”). As eventually set out in the rule, a court in the years before 1946 had only the power, first, to reduce a legal sentence before the end of the term of court during which the sentence was imposed, and second, to correct an illegal sentence at any time. If the court failed to act before the end of the term, it lost all power to reduce the sentence. See, e.g., United States v. Benz, 282 U.S. 304, 306-07, 51 S.Ct. 113, 114, 75 L.Ed. 354 (1931). There was no “inherent” power of any kind. See, e.g., United States v. Howe, 280 F. 815 (2d Cir.) (reviewing the law), cert. denied, 259 U.S. 587, 42 S.Ct. 590, 66 L.Ed. 1077 (1922). The court’s correlative power to correct an illegal sentence at any time, on the other hand, sprang from the court’s want of jurisdiction to impose the illegal sentence in the first place:

It is quite plain ... that to obtain [“relief by motion to correct the sentence”], the sentence must have been void, that is, have been rendered without jurisdiction. Mere errors in arriving at the sentence and judgment must be corrected by appeal .... [A] showing that the judgment was entered without jurisdiction is required.

Williams v. United States, 148 F.2d 923, 924 (5th Cir.) (footnote omitted), cert. denied, 325 U.S. 888, 65 S.Ct. 1574, 89 L.Ed. 2002 (1945). Accord, In re Bonner, 151 U.S. 242, 254-56, 14 S.Ct. 323, 324, 38 L.Ed. 149 (1894); In re Mills, 135 U.S. 263, 270, 10 S.Ct. 762, 764, 34 L.Ed. 107 (1890). The court’s “power” to correct an illegal sentence at any time, then, was not a real power in anything like the normal sense; rather, it was more in the nature of a duty to confess error and acknowledge that the imposition of the initial sentence exceeded the court’s statutory authority and was therefore a legal nullity. See 5 G. Longs-dorf, supra, § 2468, at 781-82 (“[T]he judgment [and sentence] cannot be set aside after the term expires, unless it is void.”); cf. Ex parte Watkins, 28 U.S. (3 Pet.) 193, 203, 7 L.Ed. 650 (1830) (Marshall, C.J.) (“An imprisonment under a judgment cannot be unlawful, unless that judgment be an absolute nullity; and it is not a nullity if the court has general jurisdiction of the subject, although it should be erroneous.”), quoted with approval in United States v. Pridgeon, 153 U.S. 48, 62, 14 S.Ct. 746, 751, 38 L.Ed. 631 (1894) (applying Ex parte Watkins, which was a habeas case, to resolve an “illegal sentence” issue).

If a sentence was only partly illegal, as, for instance, when a three-year sentence was imposed where the statute authorized only a one-year internment, Williams v. United States, 168 U.S. 382, 385, 389, 18 S.Ct. 92, 93, 94, 42 L.Ed. 509 (1897), the usual method of proceeding was to strike the excessive or illegal portion of the sentence, and leave the rest undisturbed. See, e.g., Williams, 168 U.S. at 389, 18 S.Ct. at 94. According to the Supreme Court,

the sound rule is that a sentence is legal so far as it is within the provisions of law and the jurisdiction of the court over the person and offense, and only void as to the excess when such excess is separable, and may be dealt with without disturbing the valid portion of the sentence.

Pridgeon, supra, 153 U.S. at 62, 14 S.Ct. at 751 (“hard labor” requirement of five-year sentence must be stricken because it was illegal in that federal court did not have jurisdiction to impose it); accord, Reynolds v. United States, 98 U.S. 145, 168-69, 25 L.Ed. 244 (1879) (same). See also Adams v. United States, 375 F.2d 635, 638 (10th Cir.1967) (citing this part of Pridgeon with approval); Kennedy v. United States, 330 F.2d 26, 27 (9th Cir.1964) (same). The principle here is clear: a sentence may be corrected at “any time” only to the extent that it is actually illegal. Pugliese v. United States, 353 F.2d 514, 516 (1st Cir.1965) (“[T]he word ‘illegal’ [in rule 35] is essentially a means to an end. The illegality could not exceed what needs to be corrected.”). The court must leave the valid portion alone.¹⁶

It seems likely, moreover, that those who drafted and approved rule 35 assumed that the district court did not have the power to act as it did for still another reason. As already noted above, the Advisory Committee notes to rule 35 do little more than explain that the rule codified the then existing law. And, quite apart from the question of the court’s inherent power to act, the law of 1946 would unquestionably have prohibited what the district court did in this case.

Henry argues that the threshold issue here is whether his sentences under the first two convictions could be raised from a total of seven to ten years without violating the double jeopardy guarantee of the fifth amendment. Before the Supreme Court handed down its opinion in United States v. DiFrancesco, 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980), it seemed clear that the penalty under the two convictions could not have been raised without running afoul of the double jeopardy rule established by that Court in Ex parte Lange, 85 U.S. (18 Wall.) 163, 21 L.Ed. 872 (1874), and the Fifth Circuit in Chandler v. United States, 468 F.2d 834 (5th Cir.1972) (citing Ex parte Lange and treating it as controlling). See also United States v. Benz, 282 U.S. 304, 307, 51 S.Ct. 113, 114, 75 L.Ed. 354 (1931).

The situation today is considerably more uncertain. DiFranceseo itself did nothing more than uphold against a double jeopardy attack the new “dangerous special offender” statute, which gives the government the right to take a direct appeal in order to increase a dangerous defendant’s sentence. This holding, the Court noted, was based partly on the fact that “[t]he statute is limited in scope and is narrowly focused on the problem [of too lenient sentences] so identified,” 449 U.S. at 142,101 S.Ct. at 440, and partly on the Court’s own unwillingness to take the unprecedented step of “invali-dat[ing] an Act of Congress on double jeopardy grounds,” 449 U.S. at 126, 101 S.Ct. at 431. At least three Justices have drawn the natural conclusion that “the Court’s holding in DiFranceseo is limited to the situation in which Congress has expressly authorized an increase of sentence after the initial sentence has been set aside on direct appeal," Ralston v. Robinson, 454 U.S. 201, 224 n. 3, 102 S.Ct. 233, 238 n. 3, 70 L.Ed.2d 345 (1981) (Stevens, Brennan & O’Connor, JJ., dissenting) (emphasis in original); accord, Note, A Definition of Punishment for Implementing the Double Jeopardy Clause’s Multiple-Punishment Prohibition, 90 Yale L.J. 632, 639 n. 26 (1981). The scope of the Court’s holding in DiFranceseo remains uncertain principally because the Third Circuit has held that the case abolished — even in the absence of a statute — the common law’s double jeopardy ban against the imposition of an increased sentence after the defendant has begun to serve his original sentence. United States v. Busic, 639 F.2d 940, 949-50 (3d Cir.), cert. denied, 452 U.S. 918, 101 S.Ct. 3055, 69 L.Ed.2d 422 (1981).

It is well settled, however, that a federal court should not reach a constitutional question if the case may be disposed of on statutory or other nonconstitutional grounds. See, e.g., Simpson v. United States, 435 U.S. 6, 11-12, 98 S.Ct. 909, 912, 55 L.Ed.2d 70 (1978). In this case we do not need to reach the constitutional question because for our purposes it does not matter whether DiFrancesco overrules Chandler and the other double jeopardy cases. The Advisory Committee that drafted and the Supreme Court that approved rule 35 intended to “continue[] existing law,” and since Ex parte Lange was part of that law, it may be fairly assumed that the rule was not drafted differently at least partly because everyone assumed that it would have been unconstitutional to have done so. See 5 G. Longsdorf, supra, § 2468, at 783 & nn. 66-69. The double jeopardy rule in Ex parte Lange, in other words, survives in rule 35. No ruling of this court can change that fact. Unless and until rule 35 is rewritten through the statutorily authorized mechanism of 18 U.S.C. § 3772 (1976),¹⁷ this court is constrained to follow Ex parte Lange — as it was generally understood before the Court’s ruling in DiFrancesco — in every rule 35 case.

B. The Text of Rule 35.

The text of rule 35 reinforces the above analysis.¹⁸ The parties appear to agree that the key word in the provision “The court may correct an illegal sentence at any time” is “sentence.” If the word is given what we think is its normal meaning, that is, a specific penalty imposed for a specific statutory offense, then Henry must prevail; if, on the other hand, a “sentence” within the meaning of the rule embraces the entire aggregate of the prison terms imposed upon a defendant for a single criminal transaction, viewed as a whole, then much of the analysis already presented is called into question.

The problem with the government’s approach, as the following paragraphs will show, is twofold: first, the term “sentence” simply does not mean what the government wants it to mean, and second, whatever the word might mean in the abstract, it is absolutely beyond dispute that the district court in this case did not impose anything at all like a general or “transactional” sentence.

1. The Meaning of the Word “Sentence”.

“A sentence in a criminal case,” according to the usual understanding, “is the action of the Court fixing and declaring the legal consequences of predetermined guilt of a criminal offense.” Barnes v. United States, 223 F.2d 891, 892 (5th Cir.1955) (citing 24 C.J.S. Criminal Law § 1556). And a federal “offense,” in turn, “means any criminal [act] ... which is in violation of an Act of Congress and is triable in any court established by Act of Congress.” Bail Reform Act of 1966, Pub.L. No. 89 — 465, § 3(a), 80 Stat. 214, 216 (codified at 18 U.S.C. § 3152), reenacted without material amendment by Speedy Trial Act of 1974, Pub.L. No. 93-619, 88 Stat. 2076, 2088 (codified at 18 U.S.C. § 3172 (1976)). Whether in the Speedy Trial Act or in any other context, a federal “sentence” is not general or transactional. It is the specific consequence of a specific violation of a specific federal statute.

Although the Supreme Court has generally followed this usage, see, e.g., Whalen v. United States, 445 U.S. 684, 685-86, 100 S.Ct. 1432, 1434, 63 L.Ed.2d 715 (1980); Brown v. Ohio, 432 U.S. 161, 165-66, 97 , 53 L.Ed.2d 187 (1977), the leading case on the meaning of the word “sentence” is, in fact, Benson v. United States, 332 F.2d 288 (5th Cir.1964), a Fifth Circuit case that has subsequently been extensively quoted from with approval in two of the major treatises. See 5 L. Orfield, supra, § 35:20 (textual citation with paraphrase); 3 C. Wright, Federal Practice and Procedure § 527, at 114 (1982) (block quotation in text). In Benson, this court held that a sentence was not the same thing as a so-called “general sentence,” and that the general sentence in that case was illegal within the meaning of rule 35 simply because it was a general sentence. Even circuits that have not adopted the rule in Benson have acknowledged that a “general sentence” is usually undesirable and, in any event, not at all like a “sentence” in the usual sense. See United States v. Corson, 449 F.2d 544, 551 (3d Cir.1971) (authorizing limited use of the “general sentence” and distinguishing it from “sentences”) (for the subsequent history of Corson, see note 21, infra).

Experts in criminology, moreover, use the term “sentence” in the same way, i.e., as the specific consequence of a specific statutory violation. The idea of a “transactional” type of sentence rarely appears. The following passage from a standard text in the field is typical: “Under the common law, a court has power to impose cumulative sentences on conviction of several offenses charged in separate indictments, with imprisonment for one commencing at the termination of imprisonment for the other.” S. Rubin, The Law of Criminal Correction § 21, at 481 (2d ed. 1973). See also id. §§ 21-25, at 481-93 (subchapter entitled “Clearing Multiple Counts”). Advocates of corrections reform do tend to speak broadly in terms of “sentencing,” see, e.g., Morris, Towards Principled Sentencing, 37 Md.L.Rev. 267 (1977), but whenever the discussion turns to criminal “transactions” as such, the commentators make it clear that each separate offense carries with it a separate sentence. See, e.g., Westen & Drubel, Toward a General Theory of Double Jeopardy, 1978 Sup.Ct.Rev. 81, 156-63; Comment, Cumulative Sentences for one Criminal Transaction under the Double Jeopardy Clause: Whalen v. United States, 66 Cornell L.Rev. 819 (1981); Comment, Criminal Law: Cumulative Sentencing for Offenses Within a Single Transaction, 26 U.Fla.L.Rev. 367 (1974).

2. What the District Court Did in This Case.

Disagreement with the language generally employed by the commentators and a fixed determination to overrule Benson, we hasten to point out, could do nothing to change the result in this case. If Benson were to be overruled, which we do not foresee, trial courts in the Fifth Circuit would be authorized to impose general sentences. The district court in this case may even have been tempted to do so in the proceedings below. As the government concedes, however, the district court did not impose a general sentence, Government En Banc Brief at 20, and we are at a loss to understand how we may treat the matter on appeal as though it had. The issue is not what the district court might have done, but rather what it actually did do.

This principle is fundamental. In another rule 35 case, United States v. Frady, 607 F.2d 383 (D.C.Cir.1979), the United States similarly attempted to show that the defendant’s “sentence” somehow embraced all of the sentences imposed for the same criminal transaction. The District of Columbia Court of Appeals summarily rejected the government’s position, and commented only that, in fact, “the sentences were not imposed as one sentence [since] [t]he punishment for each offense was separate.” 607 F.2d at 385. The Second Circuit has stated with equal force that just because the trial judge could have adopted a given sentencing plan, “the matter may not be treated as though he had done so.” Miller v. United States, 147 F.2d 372, 374 (2d Cir.1945). If, as the government concedes, Henry’s sentences were specific and not general, and if, as the government also appears to concede, Government En Banc Brief at 20-22, Benson retains its vitality and should not be overruled, then it logically follows that his sentences should not be viewed as one general “sentence” for the purpose of interpreting that word in the text of rule 35. The government cannot have it both ways. Either Henry’s sentences were one general sentence or they were not. We think that they were not. See Government En Banc Brief at 21 (“Specific penalties were imposed on each count.”).

The government’s argument that “sentence” within the meaning of rule 35 means all of the sentences taken together is wrong in both law and fact. Under Benson, a “sentence” in this circuit must always be specific, not general and — whatever the government thinks about the wisdom of that rule — the district court in this case unquestionably imposed specific sentences, not a general one.

3. The Import of Rule 35(b).

We think further that, no matter how we characterize what the district court did here, rule 35(b) either specifically or by implication prohibits it. First, if what the district court did here is characterized as a reduction of Henry’s section 111 sentence — a reduction that the government has pointed to repeatedly — it is unquestionably prohibited by subsection (b) of the rule. Rule 35(b) states, in pertinent part, that “[t]he court may reduce a sentence within 120 days after the sentence is imposed.” This time limitation, according to the Supreme Court, “is jurisdictional and may not be extended.”¹⁹ The district court in this case therefore had no power to reduce the sentence under section 111 (count II) from seven years to five, and consequently no power to make any reduction in Henry’s sentence beyond that permitted by the “illegal sentence” provision of rule 35(a).²⁰ Second, if what the district court did here is characterized as an increase in Henry’s section 111 sentence, we think that the negative pregnant inherent in rule 35(b) prohibits such an increase. See Pugliese, supra, 353 F.2d at 516 (construction of increase provision in light of “the negative pregnant implicit in Rule 35’s provision for reduction”). It would be fundamentally inconsistent to say that a sentence may be reduced only within the first 120 days but that it can be increased at any time.

4. The Precedents Under Rule 35.

Finally, and despite some intimations from the parties to the contrary, this is not a case of first impression. There are at least six cases that may fairly be deemed on all fours with this one. All six arose under rule 35 (or under the pre-1946 common-law motion to correct sentence) and rely not at all, or only secondarily, upon the double jeopardy rule of Ex parte Lange. United States v. DeLeo, 644 F.2d 300 (3d Cir.1981); United States v. Corson, 449 F.2d 544 (3d Cir.1971); United States v. Welty, 426 F.2d 615 (3d Cir.1970); Pugliese v. United States, 353 F.2d 514 (1st Cir.1965); Miller v. United States, 147 F.2d 372 (2d Cir.1945); United States v. Tuffanelli, 138 F.2d 981 (7th Cir.1943) (apparently the leading case).²¹ The cases speak for themselves and we see no point in giving a blow-by-blow summary of each. But the following comment from the Third Circuit bears repetition:

The [rule 35] motion was made by the defendant, and yet because his attack has been proven justified and the sentence under three of the counts must be declared invalid, the government in effect has been given an increase in the sentence under the valid count. To permit this would be to convert the relief provided by Rule 35 on behalf of defendants into a measure by which a kind of compensating remedy could be obtained by the government to preserve the effect of the invalid sentences.

The result sought by the government [also] may not be justified by resort to what is said to be the intention of the sentencing judge ....

Welty, supra, 426 F.2d at 618. The government’s interpretation of the rule, in sum, is nothing short of a perversion of it.²²

Nothing in the history or text of rule 35 gives the slightest indication that it was designed to operate as a “compensating remedy” for the government.

C. “Collateral” Support.

Although a motion brought under rule 35 is, of course, a motion “made in the original case,” Heflin v. United States, 358 U.S. 415, 418 n. 7, 79 S.Ct. 451, 453 n. 7, 3 L.Ed.2d 407 (1959), our reading of the rule also finds support in the Supreme Court’s rulings on collateral remedies, particularly 28 U.S.C. § 2255 (1976). Rule 35 differs from section 2255 in that new decisions are more easily applied retroactively in the original case, see, e.g., Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965); United States v. Shillingford, 586 F.2d 372, 375 (5th Cir.1978), the prisoner need not be “in custody,” 28 U.S.C. § 2255; Heflin, supra, 358 U.S. at 418, 79 S.Ct. at 453, and some rules of law may be given wider applicability, see 3 W. LaFave, Search and Seizure § 11.7(f), at 758-59 & n. 172 (1978 & Supp.1983) (discussing Stone v. Powell, 428 U.S. 465, 481 n. 16, 96 S.Ct. 3037, 3046 n. 16, 49 L.Ed.2d 1067 (1976)). For our purposes, however, these differences between the two avenues of relief are not as important as one fundamental similarity: each provides a narrow exception to the principle of finality, which would normally preclude the relitigation of issues already decided. Concerns that the Supreme Court has expressed about the scope of section 2255 may therefore inform our judgment about rule 35.

We begin with the observation that virtually all of the Supreme Court’s decisions in collateral relief cases are based on notions of finality that are inconsistent with the government’s reading of rule 35(a). The Supreme Court’s decisions in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), and Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974),

reflect a recognition by the Court of the institutional bias inherent in the judicial system against the'retrial of issues that have already been decided. The doctrines of stare decisis, res judicata, the law of the case, and double jeopardy all are based, at least in part, on that deep-seated bias.

United States v. Goodwin, 457 U.S. 368, 376, 102 S.Ct. 2485, 2490-91, 73 L.Ed. 2d 74 (1982). Rule 35(b), too, reflects the importance of finality in our judicial system, and subsection (a) provides an exception for illegality only because of the strong public interest in seeing that defendants are lawfully sentenced by courts that have properly assumed jurisdiction. Reopening a sentence long ago imposed and made final on appeal by a mandate of this court — to shorten it but to make it run consecutively instead of concurrently — violates this strong policy.

“The reasons for narrowly limiting the grounds for collateral attack on final judgments,” according to the Supreme Court’s opinion in United States v. Addonizio, 442 U.S. 178, 99 S.Ct. 2235, 60 L.Ed.2d 805 (1979), “are well known and basic to our system of justice.” 442 U.S. at 184, 99 S.Ct. at 2239 (footnote omitted). Exceptions to the rule of finality “undermine confidence in the integrity” of the courts while “inevitably impairing] and delaying] the orderly administration of justice.” 442 U.S. at 184 n. 11, 99 S.Ct. at 2240 n. 11. In Addonizio the Court was urged to permit under section 2255 a reduction in a legal sentence long after that sentence had become final. The asserted ground for relief was that— according to the “sentencing expectation” or “subjective intent of the sentencing judge,” 442 U.S. at 183, 187, 99 S.Ct. at 2239, 2241—Mayor Addonizio had been sentenced to more years than he otherwise would have received, had the district court been able to foresee a subsequent change in the parole practices of the federal prison authorities.

The narrow question before the Court in Addonizio was whether the “subjective intent of the sentencing judge” at the original sentencing was a sufficient ground for reopening Mayor Addonizio’s sentence in order to make it shorter. The Supreme Court’s discussion of that question bears quotation in full:

[I]n our judgment, there is no basis for enlarging the grounds for collateral attack to include claims based not on any objectively ascertainable error but on the frustration of the subjective intent of the sentencing judge.

As a practical matter, the subjective intent of the sentencing judge would provide a questionable basis for testing the validity of his judgment.... If the record is ambiguous, and if a § 2255 motion is not filed until years later, it will often be difficult to reconstruct with any certainty the subjective intent of the judge at the time of sentencing. Regular attempts to do so may well increase the risk of inconsistent treatment of defendants

442 U.S. at 187-88, 99 S.Ct. at 2241. We believe that the “subjective intent of the sentencing judge,” so often referred to by the government in these en banc proceedings, “would provide a questionable basis” for altering (years later) any final judgment. In this very important respect, Ad-donizio is indistinguishable from the present case.²³

The government asserts that the Second Circuit’s McClain cases reach a different result. See McClain v. United States, 478 F.Supp. 732 (S.D.N.Y.1979), vacated, 643 F.2d 911 (2d Cir.), cert. denied, 452 U.S. 919, 101 S.Ct. 3057, 69 L.Ed.2d 424 (1981), on appeal from remand, 676 F.2d 915 (2d Cir.), cert. denied, - U.S. -, 103 S.Ct. 174, 74 L.Ed.2d 143 (1982). The McClain cases also arose under section 2255, but authorized an increase in a sentence that the defendant had not challenged and that had long before become final. None of the McClain cases discusses or even adverts to any of the historical, jurisdictional, or practical concerns that have occupied us in this rule 35 opinion. The McClain cases also do not discuss Addonizio and the principle of finality. We therefore think that insofar as the Second Circuit’s McClain cases are inconsistent with the analysis presented in Addonizio, they are wrongly decided and should not be followed.

We believe that the analysis of finality vis-a-vis the sentencing intent of the trial judge presented in Addonizio is persuasive and — though that case is not precisely on point — applies in these rule 35 proceedings as well.

IY. DUE PROCESS AND RULE 35.

Because we are unable to find any authority, under any statute or under rule 35, for what the district court did here, we are able to and do reverse the district court’s judgment without having to reach Henry’s constitutional claims. We note those claims solely for the purpose of completeness. He first claims that his resentencing under section 111 violates the double jeopardy clause. That claim is discussed supra, text following note 16. He also claims that his resen-tencing under section 111 violates the due process clause as that clause was interpreted in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), a case decided almost a quarter century after rule 35 was originally promulgated.

The necessary predicate for a due process analysis under Pearce is an increased penalty that results from a defendant’s successful challenge to his conviction or sentence. The government urges that due process concerns are not implicated here because Henry’s rule 35 motion produced a reduction in his aggregate prison term from twelve years to ten. He did not receive the five-year benefit that he had anticipated, the government concedes, but he did receive some benefit. While superficially attractive, this argument cannot withstand close scrutiny because Henry’s section 111 sentence was, in fact, increased. The due process prohibition against sentence increases under certain circumstances plainly applies to all kinds of increases, and most particularly to modifications that make consecutive sentences that had formerly been concurrent. See Barnes v. United States, 419 F.2d 753, 754 (D.C.Cir.1969) (“the change of th[is] sentence ... from concurrent to consecutive was error in violation of the due process clause”). Henry’s originally concurrent sentence under section 111 (count II) was modified to run consecutively with his sentence under section 371 (count I) in response to his successful challenge to his sentence under section 924(c)(1) (count III). The district court’s March 20,1981, ruling in this case thus plainly calls into play the due process values first identified by the Supreme Court in North Carolina v. Pearce, supra.

Pearce and the five principal Supreme Court cases that have interpreted it²⁴ have established that although “the Due Process Clause is not offended by all possibilities of increased punishment upon re[sentencing] after appeal,” it is offended by “those that pose a realistic likelihood of ‘vindictiveness.’ ” Blackledge v. Perry, 417 U.S. 21, 27, 94 S.Ct. 2098, 2102, 40 L.Ed.2d 628 (1974). The rationale behind this rule is simple:

[S]ince the fear of such vindictiveness may unconstitutionally deter a defendant’s exercise of the right to appeal or collaterally attack his first conviction, due process ... requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge.

United States v. Goodwin, 457 U.S. 368, -, 102 S.Ct. 2485, 2489, 73 L.Ed.2d 74 (1982) (quoting Pearce, supra, 395 U.S. at 725, 89 S.Ct. at 2080). “Actual retaliatory motivation” need not exist so long as the situation produces a reasonable “fear of such vindictiveness” that would deter defendants from pursuing postconviction remedies. Blackledge, supra, 417 U.S. at 28, 94 S.Ct. at 2102.²⁵

Henry has cited the various due process cases, and points in particular to the comment in Chaffin v. Stynchcombe, 412 U.S. 17, 26-27, 93 S.Ct. 1977, 1982, 36 L.Ed.2d 714 (1973), that a trial court has a “personal stake in the prior ... [sentence and thus] motivation to engage in self-vindication.” See Reply Brief for Henry at 6. “The principal teaching of Pearce and its progeny,” according to Henry, “is that our system should guard against vindictiveness, self-vindication, and the appearance of these factors so that the right[s] to appeal or [to petition for] collateral review are not impermissibly stifled.” Id. at 7. He concludes that the government’s proposed “compensatory sentencing scheme makes a successful appeal a mere mirage, and therefore has too great a chilling effect on the exercise of important procedural rights to pass constitutional muster” under the due process clause. Id.

While we need not and do not pass on the merits of Henry’s due process argument, we recognize that it raises important questions. The Supreme Court has recently expressly acknowledged that a defendant has a legitimate “expectation of finality in his [“original”] sentence” after the various applicable time limitations for an appeal have expired. United States v. DiFrancesco, 449 U.S. 117, 136, 139, 101 S.Ct. 426, 437, 438, 66 L.Ed.2d 328 (1980) (referring by implication to the government’s time to appeal under the “dangerous special offender” statute, 18 U.S.C. §§ 3575-3576). As a general matter, moreover, the “United States ‘has no right of appeal in a criminal case, absent explicit statutory authority.’ ” DiFrancesco, supra, 449 U.S. at 131, 101 S.Ct. at 434 (citation omitted). Because the government’s proposed reading of rule 35 amounts to a request that we create out of whole cloth a right of cross-appeal that may be used to thwart defendants who successfully use the rule to challenge some illegal sentences, Henry’s Pearce argument is not frivolous.²⁶

V. CONCLUSION.

There are, in sum, at least five separate and independent reasons why the district court could not increase the total period of imprisonment from seven to ten years on the two valid parts of Henry’s three-part conviction.

First, the district court’s adjustment to the sentence under section 111 (count II) violates the mandáte of this court issued on March 19, 1976, pursuant to our opinion in James, supra, 528 F.2d at 999, and clearly exceeds the mandate of this court issued on August 8, 1980, pursuant to our en banc opinion in Henry, supra, 621 F.2d at 763. Second, rule 35 does nothing more than codify the existing law of 1946, which had not even the barest hint of any kind of power to change a valid sentence. The “power” to correct an illegal sentence at any time was not a power in the usual sense; rather, it was the simple duty to recognize that a sentence had been a nullity from the outset because of the court’s want of statutory authority to impose it. Third, rule 35 codifies the double jeopardy rule in Ex parte Lange, which clearly prohibited any increase in a sentence once a defendant had begun to serve it. DiFrancesco may indeed have overruled Ex parte Lange, although that is far from clear; nevertheless, Ex parte Lange must be followed in every rule 35 case until the rule is amended. Fourth, the text of rule 35 simply does not support the reading that the government wants us to adopt. Under rule 35(a), we can vacate only an “illegal sentence.” Henry’s sentence under section 111 is patently legal. Under rule 35(b), we can reduce a sentence only within 120 days after the sentence is imposed or the mandate issued on direct appeal. If the district court did reduce Henry’s section 111 sentence, it did so well beyond the time period authorized by rule 35(b). If the district court increased Henry’s section 111 sentence, it did so in contravention of the implicit prohibition in rule 35(b). And fifth, the government’s proposed reading of the rule is fundamentally inconsistent with Addonizio's analysis of finality vis-a-vis the “subjective intent of the sentencing judge.”

Until Congress or the Supreme Court rewrites rule 35, we may not. The orders of the district court are therefore VACATED and the cases are REMANDED for proceedings consistent with this opinion.

1 . Because the Henry and James cases arise out of the same criminal trial and present the same issues, we discuss in detail only the Henry case. We point out significant differences between the two cases in the footnotes.

2 . This opinion replaces the panel opinion in this case, which was automatically vacated upon the granting of rehearing en banc. United States v. Henry, 680 F.2d 403, vacated for en banc reconsideration, 693 F.2d 31 (5th Cir.1982); see Local Rule 17.

3 . James, but not Henry, was also sentenced under a fourth count to five years’ imprisonment (to be served concurrently with his other sentences) for unlawfully possessing an unregistered machine gun in violation of 26 U.S.C. § 5861(d) (1976). The sentence under this fourth count is npt at issue in this case.

4 .James also challenged only his sentence under section 924(c)(1).

5 . Our en banc opinion addressed only Henry’s case. A panel of this court later issued the following unpublished per curiam opinion in the James case:

In light of the decision of the United States Supreme Court in Busic v. United States, ... and consistent with our en banc decision in United States v. Henry, ... the sentence is VACATED and the case is REMANDED to the district court for further proceedings, consistent with those decisions.

United States v. James, No. 79-3762 (5th Cir. August 26, 1980) (citations omitted).

6 . The relevant portion of the district court’s opinion reads:

We note that the Court of Appeals for the Fifth Circuit in remanding this case for sentencing in accordance with Busic, did not vacate our imposition of sentence under Count Two or the entire sentence imposed under all three counts. The petitioner-defendant argues, and the government apparently concedes, that the defendant has only attacked the legality of his Count Three sentence.

United States v. Henry, Criminal Action No. 4384(N), typescript op. at 6 (S.D.Miss. filed Feb. 27, 1981).

7 . Although we note that rule 35 does not explicitly describe the circumstances under which a lawful sentence may be increased, there is case authority to the effect that a lawful sentence may be increased at any reasonable time before the defendant has begun to serve it. See, e.g., Burns v. United States, 552 F.2d 828, 831 (8th Cir.1977) (“The general rule is that where a legal sentence has been imposed, a federal court may not enhance a sentence of imprisonment once execution of the sentence has begun.”) (emphasis in original); Llerena v. United States, 508 F.2d 78, 81 (5th Cir.1975) (same); 5 L. Orfield, Criminal Procedure Under the Federal Rules § 35:31 (1967 & Supp.1982); cf. United States v. Cartwright, 696 F.2d 344, 348 (5th Cir.1983) (“[s]ound policy requires that courts should be able to revoke probation for a defendant’s offense committed before the sentence commences”) (citations omitted).

8 . Part II of this opinion directly concerns only the Henry case because there was no en banc opinion in James. For the correlative opinion rendered in the James proceedings, see note 5, supra.

9 . For the relevant text of the district court’s opinion, see note 6, supra.

10 . Busic apparently argued before the Third Circuit that he had challenged only his section 924(c), and not his section 111 sentence, see 639 F.2d at 943, 947. The Third Circuit, while noting the argument, neither agreed nor disagreed with it. What Busic may have been saying is that although his notice of appeal covered all his convictions and sentences, he actually challenged on brief only his section 924(c) conviction and sentence. While we have reviewed his notice of appeal, we have not seen his briefs and are therefore unable to resolve the unanswered question posed by his notice of appeal and his argument to the Third Circuit. Nor do we express any opinion on the question whether a conviction and sentence covered by a notice of appeal but not challenged on brief is “lawfully brought before [the court of appeals] for review,” within the meaning of 28 U.S.C. § 2106 (1976), so as to give the court of appeals jurisdiction to take any action with respect to it.

11 . Section 2106 provides:

The Supreme Court or any other court of appellate jurisdiction may affirm, modify, vacate, set aside or reverse any judgment, decree, or order of a court lawfully brought before it for review, and may remand the cause and direct the entry of such appropriate judgment, decree, or order, or require such further proceedings to be had as may be just under the circumstances.

28 U.S.C. § 2106 (1976).

12 .Since the Third Circuit’s disposition of Busic on remand from the Supreme Court, 639 F.2d at 940, was under section 2106 as that section operates in a direct appeal case, and since the present proceedings have been brought under rule 35 long after the time for a direct appeal has come and gone, the procedural issues resolved in Busic — though superficially similar to those in Henry— are not the same as those before us today. We therefore express no opinion about whether we would follow the Third Circuit should the question ever be squarely presented to us.

13 . The mandate issued pursuant to our first Henry & James opinion, 528 F.2d at 999, read in pertinent part as follows:

It is now here ordered and adjudged by this Court that the judgment of the ... District Court in this cause be, and the same is hereby, reversed as to [a codefendant] .... All other convictions are affirmed....

Mandate of Mar. 19, 1976. In the absence of a superseding mandate from this court, the mandate of March 19 still controls, i.e., Henry’s sentence under section 111 (count II) remains affirmed.

14 . See, e.g., Ex parte Sibbald, 37 U.S. (12 Pet.) 488, 492, 9 L.Ed. 1167 (1838); Schwartz v. NMS Indus., Inc., 575 F.2d 553, 554-55 (5th Cir.1978) (citing seven other Fifth Circuit cases); 18 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 4478, at 792-93 (1981 & Supp.1983) (“Law of the case terminology is often employed to express the principle that inferior tribunals are bound to honor the mandate of superior courts within a single judicial system.... This principle is so straight-forward as to present few interesting problems.”) (footnote omitted).

15 . Rule 35 now provides:

(a) CORRECTION OF SENTENCE. The court may correct an illegal sentence at any time and may correct a sentence imposed in an illegal manner within the time provided herein for the reduction of sentence.

(b) REDUCTION OF SENTENCE. The court may reduce a sentence within 120 days after the sentence is imposed, or within 120 days after receipt by the court of a mandate issued upon affirmance of the judgment or dismissal of the appeal, or within 120 days after entry of any order or judgment of the Supreme Court denying review of, or having the effect of upholding, a judgment of conviction. The court may also reduce a sentence upon revocation of probation as provided by law. Changing a sentence from a sentence of incarceration to a grant of probation shall constitute a permissible reduction of sentence under this subdivision.

Fed.R.Crim.P. 35.

16 . The government cites twelve cases that purportedly provide support by analogy for the opposite conclusion. We disagree.

Seven of the government’s cases are direct appeal cases, which present none of the jurisdictional and finality problems present in this case. See United States v. Hodges, 628 F.2d 350, 353 (5th Cir. 1980); United States v. McDaniel, 550 F.2d 214, 219 (5th Cir.1977); see also United States v. Marino, 682 F.2d 449, 455 n. 9 (3d Cir. 1982); United States v. Pinto, 646 F.2d 833, 838 (3d Cir.), cert. denied, 454 U.S. 816, 102 S.Ct. 94, 70 L.Ed.2d 85 (1981); United States v. Davis, 573 F.2d 1177, 1180-82 (10th Cir.), cert. denied, 436 U.S. 930, 98 S.Ct. 2829, 56 L.Ed.2d 775 (1978); United States v. Moore, 540 F.2d 1088, 1091 (D.C.Cir.1976); United States v. Calhoun, 510 F.2d 861, 870 (7th Cir.), cert. denied, 421 U.S. 950, 95 S.Ct. 1683, 44 L.Ed.2d 104 (1975). These cases, furthermore, also all involve what might be termed “impossible coexistence” situations, that is, situations where defendants had been sentenced under counts that could not coexist, e.g., because they described the same offense. In the Henry & James situation, on the other hand, it is clear that one of the two coexisting sentences is absolutely illegal (that under section 924(c)(1)) and the other legal (that under section 111). If the only legal problem in a case is that two sentences cannot coexist (but neither has “priority”), then it arguably makes sense to vacate both of them on a direct appeal. See also Rollins v. United States, 543 F.2d 574, 575 (5th Cir. 1977) (another “impossible coexistence” case, where neither sentence had priority; both were vacated).

The government also cites Johnson v. United States, 619 F.2d 366 (5th Cir. 1980), which was a sentence correction case brought under 28 U.S.C. § 2255 (1976). In Johnson, we remanded the case for reconsideration of sentences that the defendant had apparently not challenged because those sentences seemed “too harsh” in light of the district court’s mistaken impression that the defendant could have been given 55 years instead of the maximum of 25 that was actually authorized. 619 F.2d at 368. We did not require reduction, but noted that “[t]he District Court should at least be able to reconsider the matter.” 619 F.2d at 368. That situation, we submit, is simply different from the present one, which concerns a sentence increase in response to a successful rule 35 motion.

The government further relies on McClain v. United States, 478 F.Supp. 732 (S.D.N.Y.1979), vacated, 643 F.2d 911 (2d Cir.), cert. denied, 452 U.S. 919, 101 S.Ct. 3057, 69 L.Ed.2d 424 (1981), on appeal from remand, 676 F.2d 915 (2d Cir.), cert. denied, - U.S. -, 103 S.Ct. 174, 74 L.Ed.2d 143 (1982). For an analysis of the McClain cases, see Section III.C and note 26, infra.

The government finally relies on United States v. Busic, 639 F.2d 940 (3d Cir.), cert. denied, 452 U.S. 918, 101 S.Ct. 3055, 69 L.Ed.2d 422 (1981). For an analysis of Busic, see Part II, supra.

See also United States v. Kinsley, 518 F.2d 665, 670 (8th Cir. 1975) (rule 35 case where defendant had received maximum number of years on all counts).

17 . Section 3772 gives to the Supreme Court “the power to prescribe, from time to time, rules of practice and procedure with respect to any or all proceedings after verdict.” 18 U.S.C. § 3772 (1976).

18 . For the full text of rule 35, see note 15, supra.

19 . United States v. Addonizio, 442 U.S. 178, 189, 99 S.Ct. 2235, 2242, 60 L.Ed.2d 805 (1979); accord, United States v. Krohn, 700 F.2d 1033, 1035-38 (5th Cir.1983) (noting that district court can act within reasonable time after 120 days if rule 35(b) motion is filed before that deadline); United States v. Rice, 671 F.2d 455, 459 (11th Cir.1982); United States v. DeMier, 671 F.2d 1200, 1205-07 (8th Cir.1982); United States v. Counter, 661 F.2d 374, 376 & n. 4 (5th Cir.1981). See also Twelñh Annual Review of Criminal Procedure: United States Supreme Court and Courts of Appeals 1981-82, 71 Geo. L.J. 339, 691-93 & n. 2463 (1982) (summarizing the law and citing cases).

20 . When asked about this problem at oral argument, the government stated that the 120-day limitation in rule 35(b), as it was interpreted in Addonizio, does not apply in this case because all of Henry’s sentences here were illegal and could be appropriately modified “at any time.” For the reasons given in the rest of this opinion, we cannot agree that Henry’s sentence under section 111 (count II) was in any respect illegal. The unlimited time period in rule 35(a) thus does not apply to that sentence.

21 .To the extent that Corson and Welty relied on Ex parte Lange, they were overruled in Busic, 639 F.2d at 943 n. 3, 953 n. 14. Neither Corson nor Welty, however, relied primarily on Ex parte Lange, and their interpretation of rule 35 still appears to be good law in the Third Circuit. See DeLeo, supra.

22 . A case that at first appears to reach a different result on facts very close to those of the present case is United States v. Busic, 639 F.2d 940 (3d Cir.1981), on remand from 446 U.S. 398, 100 S.Ct. 1747, 64 L.Ed.2d 381 (1980), cert. denied, 452 U.S. 918, 101 S.Ct. 3055, 69 L.Ed.2d 422 (1981). Busic is, however, distinguishable. See Part II, supra.

But cf. also Fullman v. State, 431 A.2d 1260 (Del.1981) (construction of rule 35(a) of the Delaware Rules of Criminal Procedure, which is similar to the federal rule in conception, though not in wording).

23 . The fact that a motion under rule 35 is one “made in the original case,” Heflin, supra, 358 U.S. at 418 n. 7, 79 S.Ct. at 453 n. 7, does not, of course, mean that all of the judgments rendered at the original sentencing proceeding are automatically reopened upon the making of such a motion. That kind of reopening would fly in the face of the notions of finality that are so basic in our judicial system. Rule 35 was not designed as a vehicle to reopen final judgments long since past ripe for review.

24 . United States v. Goodwin, 457 U.S. 368, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982); Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978); Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974); Chaffin v. Stynchcombe, 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714 (1973); Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972). There have also been a number of cases in the Fifth Circuit. See United States v. Krezdorn, 693 F.2d 1221 (1982), vacated for en banc reconsideration, No. 81-1404 (5th Cir.Mar. 2, 1983); Frank v. Blackburn, 646 F.2d 873 (5th Cir.) (en banc), cert. denied, 454 U.S. 840, 102 S.Ct. 148, 70 L.Ed.2d 123 (1981); United States v. Thomas, 617 F.2d 436 (5th Cir.), cert. denied, 449 U.S. 841, 101 S.Ct. 120, 66 L.Ed.2d 48 (1980); Cole v. Wainwright, 614 F.2d 67 (5th Cir.1980); Jackson v. Walker, 585 F.2d 139 (5th Cir.1978); Hardwick v. Doolittle, 558 F.2d 292 (5th Cir.1977), cert. denied, 434 U.S. 1049, 98 S.Ct. 897, 54 L.Ed.2d 801 (1978); United States v. McDuffie, 542 F.2d 236 (5th Cir.1976); United States v. Floyd, 519 F.2d 1031 (5th Cir.1975); Burton v. Goodlett, 480 F.2d 983 (5th Cir.1973).

25 . In Thomas, supra note 24, we commented that the Supreme Court’s decision in Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978), might have signaled a retreat from Pearce and the subsequent cases through Blackledge. 617 F.2d at 438 n. 1. If so, that retreat appears to have ended at least partially with the Supreme Court’s recent ruling in Goodwin. That case laid repeated emphasis on the importance of affording the prosecutor considerable discretion in the pretrial stages of criminal litigation:

There is good reason to be cautious before adopting an inflexible presumption of prose-cutorial vindictiveness in a pretrial setting. ... At this stage of the proceedings, the prosecutor’s assessment of the proper extent of prosecution may not have crystallized. In contrast, once a trial begins — and certainly by the time a conviction has been obtained — it is much more likely that the State has discovered and assessed all of the information against an accused.... Thus, a change in the charging decision made after an initial trial is completed is much more likely to be improperly motivated than is a pretrial decision.

102 S.Ct. at 2493 (emphasis added). The law concerning posttrial presumptions of judicial vindictiveness thus seems — from the defendant’s point of view — to be as strong as ever. See Note, Prosecutorial Vindictiveness in the Criminal Appellate Process: Due Process Protection Añer United States v. Goodwin, 81 Mich.L.Rev. 194, 196 (1982).

26 . We note Professor Van Alstyne’s observation, made in a slightly different context, that the “sentencing authority is unlikely to announce that it has added to the defendant’s term solely from a sense of antagonism to those who insist upon” pursuing their legal rights. See Van Alstyne, In Gideon’s Wake: Harsher Penalties and the “Successful” Criminal Appellant, 74 Yale L.J. 606, 612 (1965).

The existence of a statute or rule institutionalizing what the government has asked us to do in this case on an ad hoc basis, moreover, might well deal with many of the concerns that Henry’s Pearce argument has raised. Vindictiveness would then play no part since the chilling of appeals does not in and of itself offend due process. See, e.g., Bordenkircher v. Hayes, 434 U.S. 357, 363, 98 S.Ct. 663, 667, 54 L.Ed.2d 604 (1978). Cf. DiFrancesco, supra, 449 U.S. at 126, 142, 101 S.Ct. at 431, 440 (noting that existence of a statute changes the nature of a constitutional inquiry under the double jeopardy clause).

Finally, “vindictiveness” within the meaning of Pearce may be rebutted if it can be shown that the district court relied “upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding.” Pearce, supra, 395 U.S. at 726, 89 S.Ct. at 2081. The Second Circuit in McClain, for instance, based its holding — that an increased sentence on one count after a successful collateral attack on another does not violate the due process clause — on exactly this kind of postsentencing identifiable behavior of the defendant. McClain v. United States, 676 F.2d 915, 918-19 (2d Cir.), cert. denied, - U.S. -, 103 S.Ct. 174, 74 L.Ed.2d 143 (1982) (reference to defendant’s involvement in five “incidents” while in prison). The district court in Henry, on the other hand, stated only that it had increased Henry’s sentence under section 111 in order to conform to its original intent of dealing firmly with him “in view of the gravity of the offense in question.” United States v. Henry, Criminal Action No. 4384(N), typescript op. at 11-13 (S.D.Miss. filed Feb. 27, 1981).