ON PETITION FOR CLARIFICATION OR REHEARING
EUGENE A. WRIGHT, Circuit Judge:
The court's opinion of May 22, 1979, reported at 597 F.2d 672, is withdrawn. The government's petition for rehearing or clarification and the defendant-appellant's petition for rehearing are granted. The following disposition replaces the court's earlier opinion.
Edick appeals the district court's order denying his motion to correct an illegal sentence following his conviction for violating the National Firearms Act, 26 U.S.C. § 5861(d) and (i). He contends that the consecutive sentences imposed were illegal because they arose from a single transaction which violated two closely related provisions of the Act. He also asserts that the initial sentence was invalid as a "split sentence" contrary to the provisions of 18 U.S.C. § 3651.
We agree that the consecutive sentences were illegal. The sentences are vacated, and the cause remanded for further proceedings consistent with this opinion.
Edick was convicted on a two-count indictment of possession of an unregistered sawed-off shotgun, in violation of 26 U.S.C. § 5861(d), and of possession of the same firearm not identified by serial number, in violation of 26 U.S.C. § 5861(i). On September 29, 1975, Edick was sentenced to imprisonment for a period of three years on Count One and five years on Count Two. The latter sentence was suspended, and he was placed on probation for a five-year period, commencing upon his release from custody on the sentence imposed under Count One. Upon Edick's motion for modification of sentence, the sentence imposed under Count One was reduced to "time served as of June 15, 1976."
A hearing was held on April 7, 1978, on Edick's motion to correct illegal sentence and on an Order to Show Cause seeking the revocation of Edick's probation under Count Two. The motion was denied. He was found to be in violation of the conditions of his probation; therefore the district court revoked his probation and imposed a new sentence of three years imprisonment on Count Two.
The question is whether consecutive sentences may be imposed on the multiple counts where the firearms violations arose from a single transaction.
ILLEGALITY OF SENTENCE
Relying on United States v. Clements, 471 F.2d 1253 (9th Cir. 1972), Edick contends that the district court exceeded its statutory authority by imposing consecutive sentences on the two counts of the indictment. He argues that under Clements the two counts must merge for sentencing purposes because they arose from the same transaction.
The government argues that Clements does not prohibit consecutive sentences per se but only those sentences that exceed the ten-year statutory maximum allowed for a single count. There is language in the opinion to support each contention. However, our consideration of Clements and subsequent cases persuades us that the broader interpretation proposed by Edick is the better view.
Clements had been convicted for a single act that violated subsections (c), (d), and (f)
In Clements we held that the imposition of consecutive maximum sentences for multiple offenses arising from the same transaction pyramids punishment when such multiple punishment is not authorized by Congress. The sentences were vacated and the cause remanded to the district court "for resentencing to a term not to exceed the maximum punishment that can be imposed for a single count of the indictment upon which Clements has been convicted." 471 F.2d at 1258.
The Clements doctrine has been discussed and approved in numerous subsequent cases both within this circuit and in others. E. g., United States v. Kaplan, 588 F.2d 71, 74-75 (4th Cir. 1978); United States v. Ortiz-Martinez, 557 F.2d 214, 216 (9th Cir. 1977); United States v. Kalama, 549 F.2d 594, 597 (9th Cir. 1976), cert. denied, 429 U.S. 1110, 97 S.Ct. 1147, 51 L.Ed.2d 564 (1977); Rollins v. United States, 543 F.2d 574, 575 (5th Cir. 1976); United States v. Ackerson, 502 F.2d 300, 305 (8th Cir. 1974), vacated on other grounds, 419 U.S. 1099, 95 S.Ct. 769, 42 L.Ed.2d 796 (1975); United States v. Tankersley, 492 F.2d 962, 969 (7th Cir. 1974); United States v. Jones, 487 F.2d 676, 679 n.1 (9th Cir. 1973). Most of these opinions have involved cases where the total of the sentences imposed exceeded the statutory maximum. Only the Fifth Circuit has addressed the precise issue raised by Edick.
In Rollins v. United States, 543 F.2d 574, the Fifth Circuit, citing Clements, vacated a ten-year sentence imposed upon revocation of probation as to one count and remanded for resentencing to a term that would not exceed the ten-year statutory maximum when coupled with the three years already served on a different count arising from the same violation of the National Firearms Act.
This application of Clements agrees with the government's argument that only sentences exceeding the ten-year maximum are prohibited. Accord, United States v. Kaplan, 588 F.2d at 75 (in remanding for correction of two consecutive maximum sentences the court noted that separate sentences were permitted so long as the total sentence did not exceed the maximum sentence allowed for one violation).
Notwithstanding these cases, the language in the Clements opinion and in subsequent opinions by this court convinces us that the law of this circuit forbids the imposition of consecutive sentences for different counts arising from a single transaction violating different provisions of 26 U.S.C. § 5861, regardless of whether the aggregate of the sentences exceeds the statutory maximum.
In Clements we stated repeatedly that Congress did not intend to impose cumulative or pyramided punishments for a single violation of the Act. 471 F.2d at 1255-58.
To maintain consistency within this circuit and to follow the policy of resolving doubts of congressional intent in favor of less severe punishment, see Prince v. United States, 352 U.S. 322, 329, 77 S.Ct. 403, 1 L.Ed.2d 370 (1957), we hold that the consecutive sentences imposed upon Edick were illegal because the offenses violating the National Firearms Act arose from a single transaction.
Edick contends that the district court had the statutory authority to impose one of three alternative sentences: (1) imprisonment for a term not to exceed ten years or a fine not greater than $10,000, under 26 U.S.C. § 5871; (2) probation for not more than five years, under 18 U.S.C. § 3651; or (3) a split sentence of not more than six months in confinement and five years on probation, under 18 U.S.C. § 3651.
Edick asserts that the counts should have been merged for sentencing and that therefore the sentence imposed was in effect a split one of three years imprisonment and five years probation in violation of 18 U.S.C. § 3651.
He argues that the three-year sentence on the first count was valid, but that the five-year sentence on the second count was void when imposed.
We need not decide whether Kennedy dictates the result urged by Edick when an illegal split sentence has been imposed, because we believe that he mischaracterizes the error that occurred below. If the district court had imposed one sentence of three years in prison and five years probation, it would clearly have violated the guidelines for split sentencing. But the problem here was not that there was one sentence unauthorized by statute. It was the consecutive nature of two separate sentences which effected an illegal cumulation of punishment under Clements.
CORRECTION OF ILLEGAL CONSECUTIVE SENTENCES
Correctly characterizing the nature of the error does not resolve the question of how to correct the imposition of illegal consecutive sentences. The government asks that we adopt the approach taken by the Third Circuit in United States v. Corson, 449 F.2d 544 (3rd Cir. 1971).
Corson was convicted on multiple counts of violating the Bank Robbery Act, 18 U.S.C. § 2113. He received consecutive sentences of 10 years on count I, five years on count II, and five years on count III. Because his consecutive sentences were illegal under Prince v. United States, 352 U.S. 322, 77 S.Ct. 403, 1 L.Ed.2d 370 (1957), the district court granted Corson's Fed.R.Crim. Proc. 35 motion and vacated the sentences on counts II and III.
The Corson court reasoned:
449 F.2d at 551 (emphasis in original) (footnote omitted). See also Natarelli v. United States, 516 F.2d 149, 153 (2d Cir. 1975).
We agree with the Third Circuit view that, when a defendant has been sentenced to illegal consecutive terms, the entire sentence must be vacated and the defendant resentenced.
At the outset, Edick could have been sentenced legally to concurrent terms of three years in prison on count I and five years in prison on count II. Alternatively, both sentences could have been suspended, and concurrent probation terms imposed. Instead, the count II sentence was suspended and a consecutive five-year probationary term imposed. Edick has now fully satisfied the count I sentence, which was reduced to time served as of June 15, 1976. He argues that resentencing him on both counts after he has fully served the sentence imposed on one count is impermissible under Ex parte Lange, 85 U.S. (18 Wall.) 163, 21 L.Ed. 872 (1873), and In re Bradley, 318 U.S. 50, 63 S.Ct. 470, 87 L.Ed. 608 (1943).
Lange was found guilty of stealing mail bags. The maximum punishment under the relevant statute was one year or a $200 fine. The judge sentenced him to one year and a $200 fine. Lange began serving his sentence and paid the fine. Five days later, the judge realized his mistake and vacated the first sentence, resentencing Lange to one year only. Lange petitioned for release on a writ of habeas corpus.
The Supreme Court concluded that the lower court had erred "in imposing the two punishments mentioned in the statute, when it had only the alternative of one of them." 85 U.S. at 174. Because Lange had paid the fine and commenced serving the sentence, the court could not resentence him to another punishment without reference to the previous sentence.
The Court noted that Lange had fully satisfied one of the punishments which the lower court could have validly imposed under the statute. As a result, that court was no longer free to vacate the sentence and to resentence him to the other alternative under the statute.
In United States v. Liddy, 166 U.S.App. D.C. 289, 510 F.2d 669 (1974), the court discussed Lange, Bradley, and a related case, United States v. Benz, 282 U.S. 304, 51 S.Ct. 113, 75 L.Ed. 354 (1931). It stated:
510 F.2d at 672 (quoting Benz, 282 U.S. at 307, 51 S.Ct. 113).
Here, the trial court's error was to subject Edick to two punishments when, under Clements, only one was authorized. Either prison time or probation was valid under the statutory alternatives, but, to avoid an illegal cumulation of punishment, the sentences had to be imposed concurrently. Manifestly, prison time and probation cannot be served concurrently.
Lange and Bradley are often cited in cases dealing with correction of illegal sentences, usually for the general proposition that a court may not increase a defendant's punishment once he has begun to serve it. E. g., United States v. Best, 571 F.2d 484, 486 (9th Cir. 1978); United States v. Bynoe, 562 F.2d 126, 128 (1st Cir. 1977); Wright v. United States, 519 F.2d 13, 16-17 (7th Cir. 1975); United States v. Turner, 518 F.2d 14, 15 (7th Cir. 1975); United States v. Corson, 449 F.2d 544, 550 (3d Cir. 1971); Kennedy v. United States, 330 F.2d 26, 27 (9th Cir. 1964); United States v. Leather, 271 F.2d 80 (7th Cir. 1959); Holbrook v. United States, 136 F.2d 649, 652 (8th Cir. 1943). In none of these cases had the defendant fully satisfied one part of an illegal consecutive sentence as has Edick.
The closest case factually is Holbrook v. United States, 136 F.2d 649 (8th Cir. 1943). Holbrook received illegal consecutive sentences of 20 years and 5 years in prison under the bank robbery statute. The court of appeals remanded, instructing the district court to vacate one of the two sentences. Holbrook contended that he was entitled to be released on the strength of Lange and Bradley because he had served more than five years.
The court agreed that the district court had the option of vacating either of the two sentences only "up to the time there has been a legal satisfaction of one of the sentences." 136 F.2d at 652 (emphasis added). It concluded, however, that Holbrook was not entitled to release because the district court had explicitly provided that he was to serve the 20-year sentence before the five-year sentence. He had not fully complied with either of the alternative sentences because he had not completed the first. By negative inference, had he fully satisfied one sentence, Lange and Bradley might have mandated his release.
In Wright v. United States, 519 F.2d 13 (7th Cir. 1975), and in United States v. Leather, 271 F.2d 80 (7th Cir. 1959), the defendants were serving multiple concurrent sentences under the bank robbery statute. The court agreed with defendants that it was error to impose more than one sentence even if they were to run concurrently. Both argued that they had satisfied the shorter of the two concurrent sentences, and therefore should be released.
In both cases, however, the sentencing courts had acknowledged the error and vacated the shorter of the two concurrent terms before the defendants had fully served them. Consequently, Bradley and Lange did not apply. In this case, the district court did not correct the illegal sentence before Edick had satisfied the three-year term imposed on count I.
We conclude that the district court lost the power to resentence Edick on count II once he had satisfied his sentence on count I. We remand to the district court to vacate the three-year sentence on count II imposed upon revocation of Edick's probation.
REVERSED AND REMANDED.
471 F.2d at 1255.
Id. at 1257.
Id. at 1258.
Ex parte Lange, 85 U.S. (18 Wall.) 163, 175-76, 21 L.Ed. 872 (1874). The same may be said of the distinction between void and voidable sentences.
449 F.2d at 552 (citing Ex Parte Lange, 85 U.S. (18 Wall.) 163, 21 L.Ed. 872 (1874), in a footnote).
The court was concerned that a resentence in excess of the amount originally imposed on any count would violate the double jeopardy clause. Id. at 551.
In Corson, the defendant originally received the maximum sentence on each count. Consequently, the district court was free to resentence up to the statutory maximum. Here, Edick received less than the maximum on both counts and he could not be resentenced to the maximum. It is the amount originally imposed on each count, rather than the maximum that could have been imposed, which sets the double jeopardy "ceiling" on resentencing. See also United States v. Turner, 518 F.2d 14, 16 (7th Cir. 1975) ("We need only determine the most severe sentence imposed on any one count to set the limits for resentencing.") (emphasis added).
With respect to the double jeopardy aspects of resentencing, Corson is in accord with cases from this circuit. In United States v. Best, 571 F.2d 484 (9th Cir. 1978), and Kennedy v. United States, 330 F.2d 26 (9th Cir. 1964), we held that when a court has imposed illegal consecutive sentences, but the length of each individual sentence is within the statutory maximum for the offense charged, the court may not increase the length of any individual sentence on remand without violating the double jeopardy clause. The court may only correct the initial illegality by making the sentences concurrent instead of consecutive.
The government again cites Rollins v. United States, 543 F.2d 574 (5th Cir. 1976), as allowing the district court to resentence Edick up to the maximum that could have been imposed on either count. This result follows from the holding of that case, that only sentences in excess of the ten-year maximum for one count under the National Firearms Act are illegal. We reject that view in the first part of this opinion, in which we hold that consecutive sentences are illegal even if their aggregate amount is within the statutory maximum for one violation of the act.
The Third Circuit in Corson opted for general sentencing under the Bank Robbery Act because it believed that concurrent sentences would be illegal under Prince v. United States, 352 U.S. 322, 77 S.Ct. 403, 1 L.Ed.2d 370 (1957). In Prince, the Court reasoned that
352 U.S. at 328, 77 S.Ct. at 407.
Relying on this merger language, the majority of courts have concluded that concurrent sentences are not permissible for the crimes of entering a bank with intent to rob it, and robbing it. E. g., United States v. Amos, 566 F.2d 899 (4th Cir. 1977); United States v. White, 440 F.2d 978 (5th Cir. 1971).
In contrast, the crimes for which Edick was convicted under the National Firearms Act do not merge in the same sense as offenses under the Bank Robbery Act. It is possible to commit the crime of possessing an unregistered firearm without committing the crime of possessing a firearm lacking a serial number.
Although these are separate offenses contained in separate provisions of the act, when they are committed with respect to the same firearm they cannot form the basis for cumulative punishment. United States v. Clements, 471 F.2d 1253 (9th Cir. 1972). But because they are separate offenses, a defendant may receive separate concurrent sentences for each. United States v. Jones, 487 F.2d 676, 679 n. 1 (9th Cir. 1973); accord, United States v. Ponder, 522 F.2d 941 (4th Cir.), cert. denied, 423 U.S. 949, 96 S.Ct. 369, 46 L.Ed.2d 285 (1975).
The fact that Lange could not recover his $200 was not the determinative factor in its decision, as the Court made clear in In re Bradley, 318 U.S. 50, 63 S.Ct. 470, 87 L.Ed. 608 (1943). There, the lower court made a nearly identical sentencing error, but attempted to rectify it by trying to return Bradley's money. The Court held that this made no difference because, by tendering the full amount of the fine, Bradley had satisfied one of the alternative sentences.
85 U.S. at 176.
There is no discussion in the opinion of Lange, Bradley, or any related cases and no indication that the defendant raised the argument that Edick raises here.
With respect to any credit that may be due Edick for time served on count II, we note that