ANDERSON, Circuit Judge:
On March 26, 1964 the appellant Sacco was convicted in the United States District Court for the Southern District of New York on two counts of an indictment, the first of which charged him, and two others, with transporting goods in interstate commerce, knowing that they had been stolen, Title 18 U.S.C. § 2314, for which the maximum penalty was ten years, and the second of which charged him and the two others with a conspiracy, Title 18 U.S.C. § 371, to commit the substantive count, for which the maximum penalty was five years. On June 18, 1964 the trial court sentenced him to five years on the first count and seven years on the second count, to be served concurrently. The sentence on the second count was therefore two years in excess of the prescribed maximum.
After the appellant had served eight months on his sentences, he discovered the error and, pursuant to Rule 35 of the Federal Rules of Criminal Procedure, moved to have it corrected. The trial judge denied Sacco’s motion but granted a cross-motion by the Government to transpose the original sentences imposed on the two counts to bring the seven year sentence within the ten year permissible maximum of the first count. From these rulings of the trial court Sacco appeals on the ground that the act of the court in increasing the sentence on the first count from five to seven years, after he had commenced serving the sentences, violated his Fifth Amendment right against double jeopardy.
It is a well settled general rule that increasing a sentence after the defendant has commenced to serve it is a violation of the constitutional guaranty against double jeopardy. Ex Parte Lange, 18 Wall. 163, 21 L.Ed. 872 (1874); United States v. Benz, 282 U.S. 304, 307-309, 51 S.Ct. 113, 75 L.Ed. 354 (1931). The only question presently raised is whether an exception should- be made to the general rule where, as in the case before us, the increase is for the purpose of carrying out what the sentencing judge says was his original intention, which was to impose a sentence of seven years on the first count and five years on the second.
This question is not a new one. The Sixth and Ninth Circuits have held that the Lange rule must be applied. Dug-gins v. United States, 240 F.2d 479 (6th Cir. 1957); Kennedy v. United States, 330 F.2d 26 (9th Cir. 1964). Cf. United States v. Adams, 362 F.2d 210 (6th Cir. 1966). Dicta in the First Circuit is in accord, Ekberg v. United States, 167 F.2d 380 (1st Cir. 1948), as is also dicta in the Fourth Circuit, United States v. Magliano, 336 F.2d 817 (4th Cir. 1964).
Although there are no cases in point in this circuit, an analogous situation was presented in Miller v. United States, 147 F.2d 372 (2d Cir. 1945). Defendant there was sentenced on two counts to run consecutively. After serving part of the sentence, he moved to correct the sentence on the ground that the offense charged in the second count was a lesser included offense of that charged in the first count. This court agreed and ruled that the sentence under the second count was void; it held further that defendant could not be resentenced on the first count even though the statutory maximum for that offense exceeded the total of the sentences originally imposed on the two counts consecutively. To the same effect is United States v. Chiarella, 214 F.2d 838 (2d Cir.), cert. denied, 348 U.S. 902, 75 S.Ct. 226, 99 L.Ed. 708 (1954).
There is one case in point reaching a contrary result. Phillips v. Biddle, 15 F.2d 40 (8th Cir. 1926), cert. denied, 274 U.S. 735, 47 S.Ct. 576, 71 L.Ed. 1311 (1927). We note that the Eighth Circuit in its opinion made no effort to explain or distinguish Ex Parte Lange and, in fact, did not mention it.
We are of the opinion that a judge should not be permitted to increase a sentence clearly and explicitly imposed, after the prisoner has begun to serve it, even though the judge later recollects that he had intended at the time to decree a longer sentence for a conviction on a particular count but did not do so because he had inadvertently confused it with another count. This is not the case of an error in reporting or a purely clerical error or a judicial mistake corrected the same day or the imposition of a sentence of less than a mandatory minimum or similar flaws which present quite different problems. The possibility of abuses inherent in broad judicial power to increase sentences outweighs the possibility of windfalls to a few prisoners.
The order of the District Coutt denying appellant’s motion to correct his sentence on count two by reducing it from seven to five years, and the order granting the Government’s counter-motion to transpose the sentences, are reversed; the sentence originally imposed on the petitioner under count two is hereby ordered reduced from seven to five years.
. But cf. an older Fourth Circuit case, Kitt v. United States, 138 F.2d 842 (4th Cir. 1943), which leans the other way.
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on an issue arising out of an alternative dispute resolution process (ADR, settlement conference, role of mediator or arbitrator, etc.) favor the appellant?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".