specially concurring:
I concur with the majority. My reasons, I believe, can be stated quickly. First, the result of Henry’s appeal was to reverse and set aside his conviction on the § 924 count, but on that count alone. It did not affect or touch upon, even indirectly, the legal validity of the remaining counts. Thus, when his conviction fell, the sentence dependent upon that conviction fell also; with no supporting conviction there can be no remaining sentence. The court had no more right or power to resentence Henry than if on direct appeal his conviction on the subject count had been reversed and remanded for evidentiary error. Of course, no one contends that in such a situation, the court, as an alternative to retrial, conviction and sentencing on the reversed count, could simply reshuffle the sentence on the remaining valid counts to effect the same (or even a slightly lesser) sentence which had been given before appeal. Similarly, the defendant here won a reversal on one of the counts with which he was charged, but part of the sentence on the fallen count was reimposed “summarily” and remained to be served (a reasonable interpretation and application of our remand by the district court, I should say). This result, while not vindictiveness in my opinion, certainly impinges on the image of fairness.
Second, double jeopardy may attach in resentencing if the consequence of the re-sentencing is to continue in effect, if only partially, the sentence on a count upon which there has been an acquittal or reversal. Double jeopardy therefore attaches to the resentence here. However, this is not to say that a timely upward resentence for which there is a valid supporting conviction necessarily violates double jeopardy rights.
Third, Rule 35(a) by its specific terms and its history applies to correct only an illegal sentence. The only illegal sentence here related to the § 924 count. This is true because the sentences here were not in fact, and cannot be considered for the purposes of our decision here, a general sentence. They were not in fact because the district judge sentenced very carefully and specifically on each individual count. They cannot be considered a general sentence by us for purposes of Rule 35, because our court in Benson v. United States, 332 F.2d 288 (5th Cir.1964), for better or for worse, has outlawed such an approach to sentence consideration. All other sentences meted out to Henry being legal sentences, only the § 924 sentence was subject to any change by the district court under Rule 35. This case is unlike United States v. Hodges, 628 F.2d 350 (5th Cir.1980) and United States v. McDaniel, 550 F.2d 214 (5th Cir.1977), where neither of the two individual sentences was illegal, but only when considered together became illegal. The illegal sentence in each of these cases was the combination of the sentences, each of which was supported by valid counts on which convictions had been upheld and which convictions were in force at time of resentence. As far as Johnson v. United States, 619 F.2d 366 (5th Cir.1980) is concerned, it is overruled at least implicitly by the majority opinion. Rule 35(a) makes no distinction between a reduction or increase of the sentence under question; only an illegal sentence can be corrected under Rule 35(a).
I conclude by saying that if the two sentences under §§ 924 and 111 respectively could have been considered illegal in combination, rather than as one distinctly legal sentence and one distinctly illegal sentence, or if a general sentence had been given by the district court, the conclusion I have reached would be different.
I only concur in the majority opinion to the extent necessary to support the specific reasons set forth in this concurrence.
GEE, Circuit Judge, with whom CLARK, Chief Judge, and BROWN, JOHNSON, GARWOOD and HIGGINBOTHAM, Circuit Judges, join, dissenting:The issue in this case is simply stated. It is whether, on remand after the invalidation of one increment of an overall sentence, the district court can impose a new sentence on the remaining counts, tailored — as was the first — to the gravity of *319the offense and the character of the offender, or whether the remains of Henry’s former sentence, mutilated by the severance of one of their members and bearing no necessary correspondence to either crime or criminal, must stand, a silent trophy to the sporting theory of justice. That the latter result, which Henry understandably champions, is repugnant to any rational system of criminal punishment is palpable. Nevertheless, he maintains, his procedural maneuvers have defeated the imposition of any rational sentencing plan and, entangled by them, we can only acquiesce. A majority of the court agrees with Henry, though only as to result.* In our view, if we can avoid such a result in a principled manner, we should.1 Let us briefly restate the facts and history of Henry’s case and then examine his arguments.
Facts and Procedural History
In 1971 Henry, the President of a purported “Republic of New Africa” (RNA) claiming Jackson, Mississippi as its “capital,” led several of its members in armed resistance to an attempt by state and federal officers to execute four arrest warrants. In consequence, one officer was killed and two others severely wounded by rifle and automatic weapons fire. Henry was charged with and convicted of several Title 18 offenses arising out of the single incident: conspiracy to assault federal officers (§ 871); using dangerous weapons in the assault (§ 111); and using a firearm to commit a felony (§ 924(c)(1)). He was sentenced to serve five years on the conspiracy charge, seven years concurrent for the assault, and five years consecutive to the first two sentences on the felony firearms charge — an overall twelve years. We affirmed his convictions, 528 F.2d 999, certio-rari was denied, 429 U.S. 959, 97 S.Ct. 382, 50 L.Ed.2d 326, and in December of 1976 he began to serve his term of years.
With 1978, however, came new developments in the law that brought Henry back to court. In Simpson v. United States, 435 U.S. 6, 98 S.Ct. 909, 55 L.Ed.2d 70 (1978), the Court determined on non-constitutional grounds that, in a prosecution arising out of a single bank robbery with firearms, one could not be sentenced under both the specific firearms enhancement section of the bank robbery statute, 18 U.S.C. § 2113(d), and the general felony firearms enhancement statute, 18 U.S.C. § 924(c)(1). Armed with Simpson, Henry directed a Rule 35 motion at the § 924(c)(1) increment of his sentence only. In the meantime, we decided United States v. Shillingford, 586 F.2d 372 (5th Cir.1978), a Rule 35 case similar to Henry’s, arising from the same incidents involving the RNA. Noting that such motions are deemed made in the original case, so that whether the change of law worked by Simpson was retroactive or not did not signify, we held that by the Simpson rationale Shillingford could not be sentenced under both Section 111 and Section 924(c) for his participation in the RNA firefight. So holding, we remanded, instructing the district court to vacate one or the other of Shillingford’s sentences and to resentence him consistent with our opinion.2
While the law of our circuit was in this posture, the district court decided Henry’s Rule 35 motion, choosing to vacate the Section 111 increment of his overall sentence and leave standing the Section 371 and 924(c)(1) components, leaving him a reduced aggregate of ten years to serve. Bound by Shillingford, a panel of our court affirmed, 611 F.2d 983, and we took Henry’s appeal en banc. While it awaited submission there, the Supreme Court decided Busic v. *320United States, 446 U.S. 398, 100 S.Ct. 1747, 64 L.Ed.2d 381 (1980).
In Busic the Court squarely held, again on exclusively statutory grounds, that the general firearms enhancement statute, Section 924(c), was not meant by Congress to apply to felonies covered by Section 111, thus vindicating the view of the Shilling-ford dissent. See note 2, supra. In a footnote significant for our present purposes, the Court posed the question that concerns us today:
The Government makes a conditional plea that should we find § 924(c) to be inapplicable to these petitioners we vacate not only the § 924(c) sentences, but also those imposed by the District Court under § 111. This, the Government urges, would permit that court to resentenee petitioners under the enhancement provision of the latter statute. The argument is that the District Court intended to deal severely with the assaults in question and should not be prevented from doing so by its choice of the incorrect enhancement provision. The Court of Appeals has not considered this contention in this context 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 this case such a disposition would be permissible.
446 U.S. at 412 n. 19,100 S.Ct. at 1756 n. 19.
It being apparent in light of Busic that the district court had erred in vacating the Section 111 increment of Henry’s sentence and retaining that imposed under Section 924(c)(1), we returned the case to that court for further proceedings by a unanimous per curiam order.3 On that remand, the district court rendered the judgment now before us. In it, the court persisted in the revised ten-year resentencing plan that it followed after the first appeal, vacating the Section 924(c)(1) sentence and reinstating the seven-year Section 111 sentence, but reducing the latter to five years. Next, it ordered the reduced Section 111 sentence to run consecutively, rather than concurrently as before, with the Section 371 sentence, thus making up a ten-year term. The court believed itself empowered to take this action despite its construction of our remand order as vacating only the Section 924(c)(1) sentence. Henry appealed again.
Perhaps thinking discretion the better part of valor, his counsel made no complaint of the trial court’s reinstating Henry’s Section 111 sentence, an action subject — at least in principle — to many of the same objections that he raises today. The spectacle of Henry’s picking off elements of his sentence one by one, so as to reduce his term to something approximating time served, may have seemed to Henry’s counsel an unfortunate one. For whatever reasons, his main contention was that the trial court had been rendered, by Henry’s maneuvers, impotent to impose a rational sentencing plan. Since the seven-year Section 111 sentence was legal and since he had never attacked it, Henry contended that the trial court could do no more than reinstate it to be served as concurrent with his Section 371 sentence, leaving him with a total of seven years to serve, most of which have passed. A panel of our court, concluding that if one portion of an overall sentence was illegal then all might properly be seen as such, rejected this contention and upheld the power of the trial court to follow its discretion in imposing a rational sentencing plan appropriate to offender and offense and free of technical trammels interposed by Henry’s procedural maneuvers. United States v. Henry, 680 F.2d 403 (5th Cir.1982). Today’s en banc majority, unrestrained by precedent except from above, rejects the panel’s conclusions and remits Henry to a sentence that is the product of no rational consideration by any court — either of him or of his offense. Respectfully disagreeing, we dissent.
Before explaining why we do so, we think it proper to observe that nothing has ap*321peared m the long course of proceedings since Henry’s conviction and original twelve-year overall sentence to change anything whatever about Henry’s offense or about Henry.4 No extraneous offense has been found not proved, no police officer has come back to life, and the aggregate sentence on the subsisting valid counts remains well within what might have been initially imposed on these two remaining counts alone. All that has changed since Henry was convicted and sentenced is the law about which particular weapons-enhancement statute could validly be applied to Henry. Today he escapes condign punishment, being made by the majority, though no less guilty and no less a criminal than before, the beneficiary of “a legal accident.” See Pollard v. United States, 352 U.S. 354, 361, 77 S.Ct. 481, 485, 1 L.Ed.2d 393 (1957). Even so, in embarking on our analysis, we bear carefully in mind the principle competing with our general observations thus far: that our system is one of prior — not ex post facto — laws, that such systems are necessarily subject to manipulations exploiting their existing structural deficiencies, and that the importance of maintaining their integrity as prior laws far transcends any result in a given case. In sum, the outcome of Henry’s appeal comes down to whether a result that could be thought desirable by no one (except Henry) is compelled by legal edicts and decisions laid down without pre-vision of their effects in Henry’s case, or whether justice can be done in the case before us. The majority determines that it cannot.
What the District Court Did
Before evaluating Henry’s objections to the trial court’s resentencing action, we pause briefly to analyze exactly what that court did. As necessitated by the Supreme Court’s decision in Busic v. United States, supra, we had returned the case to the trial judge by a mandate reading, in pertinent part: “the sentence ... in this cause is hereby vacated ... [and] this cause ... is remanded to the District Court for further proceedings consistent with [Susie].” Concluding, it may perhaps be assumed, that we must have meant him to exercise the sentencing discretion that he alone possessed — we were as capable as he merely to vacate the Section 924(c)(1) sentence and reinstate the existing Section 111 one — he proceeded to do so.
Henry’s convictions on two counts arising from the RNA firefight remained valid. On one (18 U.S.C. § 371), the maximum penalty was five years and a $10,000 fine; on the other (18 U.S.C. § 111), it was ten years and such a fine. The ten-year maximum penalty provided by Section 924(c)(1) was no longer available as a basis for the court’s sentencing plan. At the original sentencing, when the trial judge had believed the total sentence could have been as much as 25 years, he had imposed an overall sentence of twelve. At the first resentene-*322ing, when he had believed that either the ten-year penalty of Section 924(c)(1) or the identical ten-year penalty of Section 111 was available as a sentencing basis, he had imposed an overall sentence of ten years. Unfortunately and understandably misled by the status of our law, he picked the wrong ten-year penalty to travel on — that under the Section 924(c)(1) conviction. At the second resentencing, directed to consider Busic and aware that Section 924(c)(1) was not available, he simply persisted in his revised sentencing plan. So doing, he imposed the same aggregate ten-year sentence that he had concluded was merited by offense and offender after he had learned from Simpson and Shillingford that only two counts, not three, could form its basis.
For three reasons Henry contends, and the plurality opinion agrees, that he was forbidden to do so: trammels imposed on him by our earlier mandate, general constitutional considerations of due process and double jeopardy, and limitations arising from Henry’s procedural maneuvers and the terms of Rule 35, Federal Rules of Criminal Procedure. We discuss each in turn.
Violation of Our Mandates?
Henry’s first contention is one peculiar to present circumstances: that the district court’s correction of his Section 111 sentence violated our 1980 en banc mandate: “the sentence ... in this cause is hereby vacated ... [and] this cause ... is remanded to the District Court for further proceedings consistent with [Busic]” (emphasis added). He asserts that the district court correctly construed our mandate as vacating only the Section 924(c) count — since he had complained of no other — and that in undertaking to revise his sentence on valid counts that court violated both our then current mandate and the earlier 1976 mandate affirming the Section 111 count. We are not persuaded.
In the first place, his reading of the 1980 mandate as directing the district court merely to reinstate (or acknowledge the continuing validity of) the Section 111 sentence makes the remand a useless act. Although the en banc court clearly had power merely to vacate the Section 924(c) count and reinstate the Section 111 sentence, e.g. United States v. Vasquez, 504 F.2d 555 (5th Cir.1974); United States v. Buckley, 586 F.2d 498 (5th Cir.1978), cert. denied 440 U.S. 982, 99 S.Ct. 1792, 60 L.Ed.2d 242 (1979), we chose instead to remand for some action in light of Busic.
What action? Contrary to the plurality’s suggestion, Busic does not “compel” a reading of the mandate as touching only the Section 924 sentence; if anything, it compels the opposite. Since Busic recognized the possibility of resentencing on all counts after one count had been held invalid, 446 U.S. at 412 n. 19, 100 S.Ct. at 1756 n. 19, the fairest reading of our direction to act consistent with Busic is that it meant the district court to do just that. This reading takes into account that sentencing requires an exercise of district court discretion, see, e.g., United States v. Frontero, 452 F.2d 406, 409-10 (5th Cir.1971), hence a remand is required for resen-tencing but is not necessary merely to “lop off” an invalid sentence. United States v. Vasquez, 504 F.2d at 556.
Kitt v. United States, 138 F.2d 842 (4th Cir.1943) (cited with approval in McClain v. United States, 643 F.2d 911, 914 (2d Cir.), cert. denied, 452 U.S. 919, 101 S.Ct. 3057, 69 L.Ed.2d 424 (1981)), supports this construction of the mandate. On direct appeal, the Court of Appeals reversed one count, held that portions of sentences on other valid counts were excessive, and remanded for resentencing. On remand the district court reduced the sentences to valid lengths, but changed them to run consecutively, so that the total sentence was the same as that originally imposed. Again on appeal, the Fourth Circuit construed its earlier mandate to vacate the entire sentence because a remand merely to strike the illegal portions of it would have been a “foolish gesture.” 138 F.2d at 843.5 Thus, a construction of *323our mandate as vacating all components of the sentence seems the more logical one of the two, and by logic, moreover, that has found acceptance in the construction of similar mandates by other circuits.6
A second possible reply to this contention is that, in vacating only one of an interdependent congeries of sentences arising from a single criminal act, we necessarily must have intended to invalidate all and permit the trial court to devise and apply a rational sentencing plan, since leaving only the relics of an earlier plan in effect produces a purely fortuitous and haphazard result — a “legal accident.” Pollard, supra.
On balance, since we conclude that our earlier mandate should be construed as intended neither to dictate an irrational result on remand nor to constitute a foolish and useless gesture, we would adopt that construction. It is, however, another question whether we had power to do as we did, vacating valid incremental sentences that Henry had not attacked. We are statutorily empowered to vacate any “judgment, decree or order of a court lawfully brought before [us] for review.” 28 U.S.C. § 2106 (1976). In distinguishing Busic, where the defendant directly appealed from his entire judgment, from Henry, where his Rule 35 motion attacked only the Section 924(c) sentence, the plurality opinion suggests that the en banc court had no power over the Section 111 sentence because it was not “lawfully brought before [us]” by his Rule 35 motion directed only at the Section 924(c) count.7 Thus, the crucial question upon which our appellate powers under Section 2106 and the district court’s original jurisdiction under Rule 35 both depend is whether Rule 35 contemplates correction of “the sentence” as a whole, or of its component parts only. Before turning to that question, however, we consider Henry’s constitutional claims.
Due Process and Double Jeopardy
Henry contends that the “increase” in his sentence on the second remand violates his rights to due process and constitutes double jeopardy. We need not quibble with Henry’s assertion that there has indeed been an increase8 in his “sentence,” though we note the irony in his contending here for a definition of the word at complete variance with that on which he insists in his Rule 35 arguments. Of course there has been an increase, in the only sense of the word “sentence” that can matter much to Henry: because of the trial court’s action he had ten years to serve rather than only seven.
Had Henry’s due process and double jeopardy contentions been advanced fifteen years ago, they would have presented serious issues requiring extended analysis and discussion. Even today, when we think the *324march of Supreme Court authority has overrun them, they are not shortly answered.
Except in one possible respect, discussed at unfortunate but necessary length by us below, Henry’s due process claim is foreclosed by North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). Pearce, convicted of assault to rape, had received a twelve to fifteen year sentence. After entering on the service of that sentence, he mounted a successful collateral attack on his first conviction. At retrial, he was again convicted and received, in the language of the Supreme Court, a “longer total sentence.” 9 The federal district court granted habeas relief upon the authority of a then recent Fourth Circuit decision, Patton v. North Carolina, 381 F.2d 636 (4th Cir.1967), cert. denied, 390 U.S. 905, 88 S.Ct. 818, 19 L.Ed.2d 871 (1968), and held the longer sentence imposed upon retrial “unconstitutional and void.” See 395 U.S. at 713, 89 S.Ct. at 2074. The Fourth Circuit affirmed in a brief per curiam which noted only the fact that Pearce was sentenced to a longer term after his successful post-conviction attack and cited Patton. Pearce v. North Carolina, 397 F.2d 253, 254 (4th Cir.1968). It is therefore to the opinion in Patton that we must look for the reasoning of the Court of Appeals that was subsequently rejected by the Supreme Court.
In that opinion, the circuit court first carefully noted that any contention that Patton’s increased sentence “was motivated by prejudice [on the part of the second sentencing judge] because of the defendant’s successful attack on the initial conviction” had not been exhausted. 381 F.2d at 637. It then went on to hold squarely, on due process grounds, that regardless of what motivated the longer sentence — even if it was based on new facts introduced at the second trial — in no circumstances could such a more severe sentence be imposed. As to double jeopardy, it distinguished the Supreme Court decision in Stroud v. United States, 251 U.S. 15, 40 S.Ct. 50, 64 L.Ed. 103 (1919), discussed below, and relied on that in Ex Parte Lange, 85 U.S. (18 Wall.) 163, 21 L.Ed. 872 (1874), and on dicta in United States v. Benz, 282 U.S. 304, 51 S.Ct. 113, 75 L.Ed. 354 (1931). See 381 F.2d at 643-45. According to its reasoning, Lange and Benz establish the proposition that the aspect of double jeopardy forbidding multiple punishment for one offense “prohibit[s] an increase in a defendant’s sentence, once service has commenced.” 381 F.2d at 645. It therefore affirmed the grant of habeas corpus on both due process and double jeopardy grounds, adding equal protection for good measure.10
The Supreme Court granted certiorari and reversed this reasoning across the board. United States v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). In its discussion of Pearce’s double jeopardy contention, to which we shall have further reference below, the Court rejected the circuit court’s attempted distinguishment of Stroud in clear terms:
And at least since 1919, when Stroud v. United States, 251 U.S. 15, 64 L.Ed. 103, 40 S.Ct. 50, was decided, it has been settled that a corollary of the power to retry a defendant is the power, upon the defendant’s reconviction, to impose whatever sentence may be legally authorized, whether or not it is greater than the sentence imposed after the first conviction.
395 U.S. at 720, 89 S.Ct. at 2078 (footnote omitted). Noting that whether “a defendant’s conviction is overturned on collateral rather than direct attack is irrelevant for these purposes,”11 and referring to the *325modern penological view that the punishment should fit both offender and offense,12 the Court held that “there exists no absolute constitutional bar to the imposition of a more severe sentence upon retrial.” 395 U.S. at 723, 89 S.Ct. at 2079. So holding, however, it added that according due process most emphatically does require that vindictiveness against a defendant for having successfully attacked his first conviction play no part in any new sentence, lest his apprehension of retaliation deter him from exercising his right to appeal or collaterally attack his first conviction. Id. at 725, 89 S.Ct. at 2080.
The Court then added a qualification that renders us unable to conclude without further analysis that Pearce forecloses Henry’s due process attack upon his resentence. This took the form of a prophylactic rule, one doubtless akin to the exclusionary rule in forming no part of the Constitution but being designed to enforce rights found there:
In order to assure the absence of such a [vindictive] motivation, we have concluded that whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. And the factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal.
Id. at 726, 89 S.Ct. at 2081. In the nature of things, the district court did not base Henry’s increased sentence on such information. If Pearce demands that, then here is an end of the matter; Henry prevails. We do not think it does.
Instead, we think what Pearce demands is a clear showing that vindictiveness bore no part in the resentence, demonstrated by reasons stated in the record. And our conclusion is fortified by the Court’s concluding observation in Pearce, voiced after laying down the rule quoted above, that “neither at the time the increased sentence was imposed upon Pearce, nor at any stage in this habeas corpus proceeding, has the State offered any reason or justification ” for the increased sentence. Id. at 726, 89 S.Ct. at 2081 (emphasis added).
Here such reasons do appear in the record. In his resentencing opinion, the trial judge stated:
We concede that by making this five year sentence run consecutively to the five year sentence imposed on Count One, the total sentence that the defendant will be required to serve under Counts One and Two will be ten years rather than seven originally imposed by this Court on those two counts by ordering the seven year Count Two sentence to run concurrently with the Count One five year sentence. However, this Court determined the gravity of the offense in question by also imposing a five year consecutive sentence for violation of Count Three, which was legally incorrect, although the Courts had not spoken to that question at that time. This Court feels that inasmuch as it determined the gravity of the offense in question to warrant the twelve year sentence originally imposed upon this defendant, to require him to serve a ten year sentence, in view of the fact that we were required to vacate his Count Three sentence, does not violate the double jeopardy clause, nor does it result in any inequity or unfairness and certainly does not exceed the maximum sentence prescribed by the Congress.
We think the judge’s stated reason for increasing Henry’s sentence an adequate one. As we have noted above, in Busic v. United States, 446 U.S. 398, 411 n. 19, 100 S.Ct. 1747, 1756 n. 19, 64 L.Ed.2d 381 (1980), the Supreme Court left the identical question open, noting the Governments conten*326tion that “the District Court intended to deal severely with the assaults in question and should not be prevented from doing so by its choice of the incorrect enhancement provision” and declining to address it without benefit of the views of the Court of Appeals. Had the Supreme Court, speaking long after Pearce, believed that such a purpose on the part of the trial judge was intrinsically improper, surely it would have said so, rather than remitting the parties and the courts below to a futile and foredoomed process. And when the Court of Appeals held that Busic’s sentence could be increased, and for the very reason given, United States v. Busic, 639 F.2d 940 (3d Cir.1981), the Supreme Court declined to intervene. 452 U.S. 918, 101 S.Ct. 3055, 69 L.Ed.2d 422 (1981) (denying certiorari). Since the trial judge’s stated reasons rule out vindictiveness as a motive in his resen-tence, we think that Pearce and due process are satisfied.13 So concluding, we turn to Henry’s double jeopardy claim.
The issues raised by this contention have, like those of Henry’s due process contention, also been rendered simpler by modern decisions of the Supreme Court. Prior to the Court’s decisions in United States v. Pearce, supra, and United States v. Di Francesco, 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980), of which more later, the multiple punishment aspect of double jeopardy was generally perceived as controlled by Ex Parte Lange, 85 U.S. (18 Wall.) 163, 21 L.Ed. 872 (1874). Lange, in turn, was uncritically accepted as standing for the proposition that the original sentence in a case, as pronounced, was to be treated in the same manner as an acquittal, so that for finality purposes of double jeopardy the imposition of a given sentence constituted an “implied acquittal” of any greater one. See, e.g., Patton v. North Carolina, 381 F.2d 636 (4th Cir.1967) (alternate ground; discussed above), cert. denied, 390 U.S. 905, 88 S.Ct. 818, 19 L.Ed.2d 871 (1968); Van Al-styne, In Gideon’s Wake: Harsher Penalties and the “Successful” Criminal Appellant, 74 Yale L.J. 606, 634-35 (1965). Indeed the Supreme Court itself had lent fuel to the flames. United States v. Benz, 282 U.S. 304, 51 S.Ct. 113, 75 L.Ed. 354 (1931), con*327tains broad dicta, purportedly based on Lange, suggesting that the Constitution forbids a federal court to increase any sentence once a defendant has begun to serve it. Certainly we, along with other courts of appeals, accepted these propositions. In Chandler v. United States, 468 F.2d 834 (5th Cir.1972), citing Lange and numerous authorities from other circuits, we laid it down that:
The double jeopardy provision of the Constitution is designed to protect an individual from being retried for the same criminal acts. It is well established that this safeguard is not limited to the retrial of the question of guilt, but also protects against resentencing for the same offense. “For of what avail is the constitutional protection against more than one trial if there can be any number of sentences pronounced on the same verdict.” Ex Parte Lange, 1873, 18 Wall. 163, 173, 85 U.S. 163, 21 L.Ed. 872.... Here, [like Henry,] petitioner only challenged the sentence on count one. The three year sentence on count two was within the statutory maximum and was unchallenged by petitioner. The upward modification of that sentence was undertaken sua sponte by the district court.
468 F.2d at 835-36 (emphasis added). So holding, we vacated that modification as working double jeopardy. With the handing down of Pearce and Di Francesco, however, we think it became apparent that the law (and the Constitution) were not as we had thought in Chandler, but otherwise.
In Pearce, as we have noted, the Court held squarely that where an initial sentence is overturned, whether on appeal or by collateral attack, on retrial and conviction the trial judge — absent vindictiveness — is constitutionally empowered “to impose whatever sentence may be legally authorized, whether or not it is greater than the sentence imposed after the first conviction.”14
Further clarification came with Di Francesco, 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980), in which the Court explained its holding in Ex Parte Lange and confined its Benz dicta to that narrow context. 449 U.S. at 138-9, 101 S.Ct. at 438. The Organized Crime Control Act authorized an appeal by the Government of sentences imposed on “dangerous special offenders.” 18 U.S.C. §§ 3575(e) & (f), 3576 (1976). Di Francesco, a racketeer with a lengthy criminal record comprising convictions for murder, arson, bombings and loansharking, received two such concurrent ten-year sentences for racketeering offenses, themselves to run concurrently with an unrelated nine-year sentence imposed on him just the month before. The United States appealed, contending that the district judge abused his discretion in imposing what was, in practical effect, a one-year sentence for the later multiple convictions. Citing Ex Parte Lange and the Benz dicta, the Court of Appeals held that the double jeopardy clause barred an increase in Di Francesco’s sentences. United States v. Di Francesco, 604 F.2d 769, 784-87 (2d Cir.1979). In the course of so doing, that court distinguished Pearce on the ground, with another, that unlike Pearce, Di Francesco had not sought a retrial, the consequence of which might have been an increased sentence. Id. at 785-86. Again, as in Pearce, the Supreme Court granted certiorari and reversed.
Its opinion emphasizes the distinction for double jeopardy purposes between acquittals and sentences, holding flatly that “the Double Jeopardy Clause does not require that a sentence be given a degree of finality that prevents its increase.” 449 U.S. at 137, 101 S.Ct. at 437.15 Turning to the question *328whether the increase of a sentence once imposed constitutes multiple punishment violating that Clause, and to the Court of Appeals' conclusion that it does, the Court spoke in terms that demolish the plurality’s arguments based on Lange and the Benz dicta:
We turn to the question whether the increase of a sentence on review under § 3576 constitutes multiple punishment in violation of the Double Jeopardy Clause. The Court of Appeals found that it did. 604 F.2d, at 784-787. This conclusion appears to be attributable primarily to that court’s extending to an appeal this Court’s dictum in United States v. Benz, 282 U.S. 304, 307, 75 L.Ed. 354, 51 S.Ct. 113, 114 (1931), to the effect that the federal practice of barring an increase in sentence by the trial court after service of the sentence has begun is constitutionally based. The real and only issue in Benz, however, was whether the trial judge had the power to reduce a defendant’s sentence after service had begun. The Court held that the trial court had such power. It went on to say gratuitously, however, id., at 307-308, 75 L.Ed. 354, 51 S.Ct. 113, and with quotations from a textbook and from Ex parte Lange, 18 Wall., at 167, 173, 21 L.Ed. 872, that the trial court may not increase a sentence, even though the increase is effectuated during the same court session, if the defendant has begun service of his sentence. But the dictum’s source, Ex parte Lange, states no such principle. In Lange the trial court erroneously imposed both imprisonment and fine, even though it was authorized by statute to impose only one or the other of these two punishments. Lange had paid the fine and served five days in prison. The trial court then resentenced him to a year’s imprisonment. The fine having been paid and the defendant having suffered one of the alternative punishments, “the power of the court to punish further was gone.” Id., at 176, 21 L.Ed. 872. The Court also observed that to impose a year's imprisonment (the maximum) after five days had been served was to punish twice for the same offense. Id., at 175, 21 L.Ed. 872. The holding in Lange, and thus the dictum in Benz, are not susceptible of general application. We confine the dictum in Benz to Lange’s specific context.
449 U.S. at 138-39, 101 S.Ct. at 438 (emphasis original; footnote omitted).
What “specific context”? We see no reasonable alternative — given the Court’s observation quoted above that in Lange, the defendant “having suffered one of ... alternative punishments,” id.,16 the power of the trial court to punish him further was gone — to concluding that the curious and mechanical rule, erroneously derived from Lange, that a sentence becomes inviolate once service of it commences has been disavowed. In so doing, we concur in the observations of the Third Circuit, writing on remand in Busic, that
[t]here is no double jeopardy objection to altering the sentence even after service of a sentence has begun. Those courts who believed that commencement of the *329service of the sentence restricted the trial court’s power to correct or amend a sentence have relied on a dictum in United States v. Benz, 282 U.S. 304, 51 S.Ct. 113, 75 L.Ed. 354 (1930), that a sentence may not be amended to increase the punishment because it subjects the defendant to double punishment for the same offense. Id. at 307, 51 S.Ct. at 114. The Court in Benz, however, erroneously predicated its dictum on Ex Parte Lange, 85 U.S. 163, 21 L.Ed. 872 (1874), which involved a full satisfaction of the defendant’s sentence, not merely a commencement of the service of his sentence.
United States v. Busic, 639 F.2d 940, 948 n. 11 (3d Cir.) (emphasis original), cert. denied, 452 U.S. 918, 101 S.Ct. 3055, 69 L.Ed.2d 422 (1981).
We are fortified in our rejection of “the now discredited decisions in Ex Parte Lange ... and United States v. Benz ”17 by several observations of the Supreme Court in Di Francesco. None of these, we concede, approaches the dispositive. All, however, point in the same direction — toward a rational, not a mechanical, application of the Double Jeopardy Clause to resentencing proceedings.18 Also significant is the very recent decision in Missouri v. Hunter, - U.S. -, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983), where the Court, rejecting a multiple-punishment claim, observed, “With respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does not more than prevent the sentencing court from prescribing greater punishment than the legislature intended.” 103 S.Ct. at 678, 74 L.Ed.2d at 542.
We have discussed Henry’s constitutional contentions at length — greater length, perhaps, than they merit. For the reasons given, we would reject them. We turn now to Henry’s final contention.
Rule 35
Rule 35 provides in relevant part that “[t]he court may correct an illegal sentence at any time (emphasis added).” As we have already observed, the crucial question in this case is whether the power to correct an “illegal sentence” is power to correct the entire sentence or only its component parts. If the entire sentencing plan is rendered illegal by its incorporation of an invalid component, then Henry’s Rule 35 motion brought the entire sentence before the district court, so that both that court and we had power to act to preserve a rational plan.
The major argument of the plurality is that the history of Rule 35 shows that it was intended to codify existing law, which was that a sentence is only illegal to the extent that portions of it are successfully attacked. We will discuss the plurality’s version of pre-Rule 35 law presently. First, we take issue with its interpretation of Rule 35’s history.
The plurality’s entire argument proceeds from, and depends upon, its interpretation of one sentence in the notes of the Advisory Committee that drafted Rule 35 in 1946. The Advisory Committee stated, without further elaboration,19 that Rule 35’s provision that an illegal sentence may be corrected at any time “continues existing law.” Advisory Committee Note to Rule 35, reprinted in 18 U.S.C. app. at 1461 (1976).
*330From the Committee’s simple acknowl-edgement of the common law origin of Rule 35, the plurality opinion derives a startling proposition: that if, in 1946, there was no common law power for the district court to do what it did in his case, then there can be none today under Rule 35. Put simply, the claim is that Rule 35 “froze” for all time the law governing sentence correction as developed by the courts prior to 1946, until the words of the Rule itself are rewritten by the Supreme Court.20
This novel theory is not supported by the plain meaning of the Advisory Committee’s remark, and, not surprisingly, the plurality directs us to no other authority supporting such a restrictive treatment of one of the Federal Rules. A fair reading of the Committee note is that it served to identify the source of the Rule, the pre-Rule caselaw, and perhaps to explain what the Rule meant at the time of its adoption. However, it must be borne in mind that Rule 35, like the other Federal Rules and the decisions of the federal courts, is a judge-made rule promulgated pursuant to statutory authority.20® What the plurality ignores is that, like all such judicial rules, its content is subject to continuing development through interpretation in the context of changing conditions.
That conditions have changed significantly since 1946, when Rule 35 was adopted, has already been explained. Between 1874, when it was handed down, and 1946, Ex Parte Lange held sway, and courts undoubtedly believed the Constitution denied them the power to do what the district court has done in Henry’s case. See, e.g., Miller v. United States, 147 F.2d 372, 373 and n. 5 (2d Cir.1945) (suggesting double jeopardy precludes remand for resentenc-ing); 5 G. Longsdorf, Cyclopedia of Federal Procedure § 2468, at 783 & nn. 66-69 (1929); see also United States v. Benz, 282 U.S. 304, 307, 51 S.Ct. 113, 114, 75 L.Ed. 354 (1931). We do not believe that after Di Francesco the Constitution can still be interpreted in this fashion.
In order to obtain its result, however, the plurality is forced to maintain that in 1946 Rule 35 froze the law in place. The Supreme Court may be surprised to learn that its recent pronouncements on the constitutional limits of the sentencing power may not be implemented in cases brought under Rule 35, one of the primary vehicles for the exercise of that power, and that the meaning of Rule 35 must remain static until the Court revises the words of the Rule itself. This proposition, we think, ignores the Rule’s status as a judge-made one and hampers the ability of federal courts to implement a rational development of the law. Even the Constitution, though seldom amended, has undergone such development.
That the history of Rule 35 does not require such a result is borne out by the history of another Federal Rule of Criminal Procedure — Rule 11. Just as had been stated in regard to Rule 35, the Advisory Committee noted that Rule 11 was “substantially a restatement of existing law and practice.” Advisory Committee Note to Rule 11, reprinted in 18 U.S.C. app. at 1417 (1976).21 Even so, the requirements of Rule *33111 have undergone substantial development since its adoption. Some of that development is traced in McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969).
Rule 11 was designed to assure that a guilty plea would not be accepted unless the plea is voluntary and the defendant understands the nature of the charge against him and the consequences of his plea. Before McCarthy, whenever a trial judge had failed to ascertain these facts, the defendant’s remedy was a factual hearing at which the burden was on the Government to demonstrate the required facts based on the record. McCarthy, 89 S.Ct. at 1172 & nn. 22 & 23, 22 L.Ed.2d at 426-27 & nn. 22 & 23 (collecting cases); 1 C. Wright, Federal Practice & Procedure: Criminal § 178, at 674 (2d ed. 1982). This remedy was a continuation of pre-Rule 11 law: when a defendant attacked the voluntariness of his guilty plea, the court would review the record to determine if a factual basis for his claim existed. See, e.g. United States v. Denniston, 89 F.2d 696, 698 (2d Cir.) (Chase, J.), cert. denied, 301 U.S. 709, 57 S.Ct. 943, 81 L.Ed. 1362 (1937). Not long before McCarthy, the Ninth Circuit reversed its cases based on pre-Rule law, holding instead that a defendant’s remedy for a Rule 11 violation would thereafter be to have his guilty plea set aside and his case remanded for a new hearing and opportunity to plead anew. Heiden v. United States, 353 F.2d 53 (9th Cir.1965). On certiorari, the Supreme Court resolved this conflict, holding that “the Ninth Circuit has adopted the better rule.” McCarthy, 89 S.Ct. at 1172, 22 L.Ed.2d at 427.
By the time of the McCarthy decision, two things had changed since Rule 11 was adopted. First, the original rule had been amended to require the trial judge to address the defendant personally when ascertaining the facts required by the Rule. See id. 89 S.Ct. at 1171, 22 L.Ed.2d at 425. Second, the Court had just held in McCarthy itself that this procedure must be followed exactly to satisfy Rule 11. Id. 89 S.Ct. at 1171, 22 L.Ed.2d at 426. The Court recognized that these changes raised the separate issue of a defendant’s remedy in case of noncompliance with the Rule as newly interpreted. Though it would still have been possible to follow existing law and hold a hearing to determine if noncompliance was harmless error, the Court chose to adopt the new remedy in light of its increased emphasis on strict compliance with procedural sáfeguards under the Rule. Id. 89 S.Ct. at 1173, 22 L.Ed.2d at 428.
Hence, the McCarthy court undertook to reinterpret Rule 11, as had the Ninth Circuit, in response to changed conditions. When it had finished doing so, the Rule had a new meaning — though not one word of it had been changed. No one thought the Court’s only recourse was to amend the Rule itself. Similarly, our own court has participated in the continuing development of the law under Rule 11. United States v. Dayton, 604 F.2d 931 (5th Cir.1979) (en banc), cert. denied, 445 U.S. 904, 100 S.Ct. 1080, 63 L.Ed.2d 320 (1980). After we did so, sitting en banc, the Rule’s meaning in our Circuit has not been as it was. We would therefore conclude that whatever the state of pre-1946 law, Rule 35 was not intended to etch it in stone, and that today— almost 40 years later — we are not bound by that law when faced with an altered legal and constitutional landscape.
Our conclusion is buttressed by the fact that the state of the law of sentence correction was not so clear in 1946 as the plurality suggests. In a nutshell, the claim is that, before Rule 35, the common law power to correct an illegal sentence at any time extended to void sentences only; those that were entered without jurisdiction:
*332the 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 persons 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.
United States v. Pridgeon, 153 U.S. 48, 62, 14 S.Ct. 746, 751, 38 L.Ed. 631 (1894). Relying upon the relatively few reported decisions, contemporary commentators had announced this view. See generally 5 G. Longsdorf, supra, § 2468; 5 L. Orfield, Criminal Procedure Under the Federal Rules §§ 35:1 to :3 (1967) (subchapter entitled “The Law Before Rule 35”).
We think there is considerable doubt, however, whether this restrictive view of illegal sentences, one that developed in ha-beas corpus cases such as Pridgeon, survived the development of a motion practice to correct sentences. In Holiday v. Johnston, 313 U.S. 342, 61 S.Ct. 1015, 85 L.Ed. 1392 (1941), the Supreme Court first sanctioned the use of a motion to the sentencing court for this purpose. See United States v. Bruce, 52 F.Supp. 150 (W.D.Ky.1943) (explaining development of common law motion to correct sentence), appeal dismissed, 188 F.2d 467 (6th Cir.1951). Holiday had been convicted and sentenced on two counts, one for bank robbery and the other for jeopardizing the lives of bank officials during the course of the robbery. He sought a writ of habeas corpus, claiming that the two counts charged only one offense and that only his first sentence was valid. Conceding that the first sentence was the only valid one, the Court held that habeas corpus was unavailable because Holiday had not served that sentence. The Court went on to approve a motion as the proper relief: “His remedy is to apply for vacation of the sentence and a resentence in conformity to the statute under which he was adjudged guilty.” 313 U.S. at 349, 61 S.Ct. at 1017 (emphasis added).
The Holiday Court’s broad language admits no limit on the resentencing power other than the statute itself. That the court would take a broader view of the “illegal sentence” when it was attacked by motion, rather than habeas corpus, makes sense when the source of the narrow view is understood. At that time, habeas jurisdiction extended to correct only such acts as were taken without jurisdiction, i.e. in excess of statutory authority. E.g., 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, 10 S.Ct. 762, 34 L.Ed. 107 (1890). Thus, in a habeas case, only the portion of the sentence in excess of the statute was within the court’s limited jurisdiction. Since the motion approved in Holiday was not a collateral attack, cf. Heflin v. United States, 358 U.S. 415, 418 n. 7, 79 S.Ct. 451, 453 n. 7, 3 L.Ed.2d 407 (1959), the court’s jurisdiction was arguably broader, extending to correct the entire sentence to “conform[] to the statute.” Holiday, 313 U.S. at 349, 61 S.Ct. at 1017. See Kitt v. United States, 138 F.2d 842 (4th Cir.1943) (correcting all counts of a sentence on direct appeal), citing Williams v. United States, 168 U.S. 382, 389, 18 S.Ct. 92, 94, 42 L.Ed. 509, 512 (1897) (if only error on direct appeal was sentence in excess of statute, it would “only be necessary for the court below to enter a new judgment, imposing such fine or imprisonment, or both, as the statute permitted ” (emphasis added)).
Our point is not that the pre-1946 majority view was other than that stated by the authorities cited by today’s plurality of our court. Rather, it is that developments shortly before adoption of Rule 35 indicate that the law was in flux, creating uncertainty as to the scope of a court’s sentencing power when invoked by a motion. That uncertainty adds to our conviction that the drafters of Rule 35 did not intend to freeze the ongoing development of the law.
The plurality’s final argument is that the weight of contemporary authority holds that only the invalid components of a multi-count sentence may be changed in a Rule 35 case. We think it clear, however, that many of these decisions, including those of our own court, have lost their precedential force, having been grounded in a view of double jeopardy that has been repudiated *333by the Supreme Court. E.g. Chandler v. United States, supra. A few others, it is true, cast their holdings in terms of the power given the court by Rule 35. United States v. DeLeo, 644 F.2d 300 (3d Cir.1981); United States v. Corson, 449 F.2d 544 (3d Cir.1971) (dicta); United States v. Welty, 426 F.2d 615 (3d Cir.1970); Pugliese v. United States, 353 F.2d 514 (1st Cir.1965).
The short answer to the plurality’s argument that we should follow the law of other circuits has been given by Judge Brown, writing for a panel of our own court which recently took a contrary view of the power of courts to correct an illegal sentence under Rule 35. Johnson v. United States, 619 F.2d 366 (5th Cir.1980) (Brown, Hill and Randall, JJ.). If precedent alone were the answer to the questions posed to this en banc court, Johnson would end the matter.
The petitioner in Johnson was convicted of bank robbery in violation of 18 U.S.C. § 2113(a), assault with a dangerous weapon during a bank robbery in violation of 18 U.S.C. § 2113(d), and carrying a firearm unlawfully during the commission of a felony in violation of 18 U.S.C. § 924(c)(2). He was sentenced to three concurrent prison terms of 20 years, 20 years, and 2 years respectively. He did not take a direct appeal from the convictions. Later, he brought an action under § 2255 attacking the sentences. This court held that his § 924(c) sentence was invalid under Simpson v. United States, 435 U.S. 6, 98 S.Ct. 909, 55 L.Ed.2d 70 (1978), that the § 2113(a) sentence was invalid under Prince v. United States, 352 U.S. 322, 77 S.Ct. 403, 1 L.Ed.2d 370 (1956), and that the § 2113(d) count was the only basis for a sentence.
For present purposes, the most significant fact in Johnson was that Simpson had been decided long after Johnson’s conviction became final. In order that Simpson could be applied retroactively without an independent analysis of the retroactivity question, this court accepted the government’s concession that Johnson’s § 2255 petition could be treated as a Rule 35 motion. 619 F.2d at 368 n. 5.22 Thus, treating the case as an appeal from the denial of a Rule 35 motion, our court held two sentences invalid and one valid. Then, expressly relying on our “supervisory” powers under 28 U.S.C. § 2106, we remanded for resentenc-ing on the valid count. Id. at 368. The stated purpose was to give the district court a chance to resentence with the knowledge that the maximum potential sentence was 25 years under one count, not 55 years under three (the court had given Johnson 20 years on the § 2113(d) count).
An analysis of Johnson leads to one inescapable conclusion: this court recognized in that case that when Rule 35 speaks of an “illegal sentence,” it speaks of the entire sentence comprising all counts. Since Johnson must be read as an appeal from denial of a Rule 35 motion, this appellate court had jurisdiction over the sentences on all counts only if Johnson’s Rule 35 motion brought the entire sentencing plan into question. The Johnson court’s action in vacating the sentences on valid counts simply cannot be reconciled with Henry’s assertion that the phrase “illegal sentence” in Rule 35 is limited to the sentences on invalid counts. It is no answer to say, as does the plurality opinion, that, in contrast to the present case, the Johnson court contemplated a sentence reduction — which is “simply different” from an increase. The manner in which the court changes a sentence may influence whether double jeopardy is implicated, but it bears no relevance whatsoever to the issue of the court’s power over the sentencing scheme. Rule 35 either gives the district court power to correct the entire sentence or it doesn’t; whether the exercise, of *334the power is constitutional is an entirely separate question.
This analysis is borne out by the Sixth Circuit’s recent Rule 35 decision in United States v. Moore, 688 F.2d 433 (6th Cir.1982). There, the prisoner had been sentenced to 15 years for putting lives in jeopardy during a bank robbery, and to 25 years for kidnapping during a bank robbery. The sentences were to run consecutively for a total of 35 years. Applying United States v. Hunter, 538 F.2d 1239 (6th Cir.1976), the court held that the two offenses merged and that a sentence should have been imposed on only the most aggravated count. In discussing the remedy, the court approved the approach in Hunter, which on direct appeal had vacated all sentences and remanded for resentencing on the one valid count, stating:
Accordingly, the order denying correction or reduction of sentence under Rule 35 is vacated and the case is remanded for further proceedings consistent with this opinion. On remand, the District Judge should particularly consider the impact of North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969); United States v. Benz, 282 U.S. 304, 51 S.Ct. 113, 75 L.Ed. 354 (1931) and Papp v. Jago, 656 F.2d 221 (6th Cir.1981) [requiring reasons stated in the record for an increase in sentence after remand].
688 F.2d at 435. Though cryptic, the Moore decision clearly stands for two propositions. First, the remedy it selected shows that there is power to vacate sentences on all counts under Rule 35. Second, the citations to Pearce, Benz, and Papp indicate that the court thought the only limitations on the resentencing power were constitutional ones.
Our view of Rule 35 is also confirmed by the Second Circuit’s recent treatment of the resentencing question after a successful Section 2255 petition. 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).
In an appeal from denial of a Section 2255 motion to correct a sentence similar to Henry’s, the Second Circuit declined merely to vacate the § 924(c) count, and instead vacated the entire sentence on all counts, remanding for resentencing. In so doing, the court refused to follow its prior eases on which the plurality relies, suggesting that such an action was inappropriate under Rule 35. 643 F.2d at 913 (discussing Miller v. United States, 147 F.2d 372 (2d Cir.1945) and United States v. Sacco, 367 F.2d 368 (2d Cir.1966) (to raise sentence on valid count on Rule 35 motion is double jeopardy)). By remanding for re-sentencing notwithstanding those decisions, the court strongly implied that the only limit on resentencing under Rule 35, as well as under Section 2255, is the double jeopardy clause. 643 F.2d at 913. On remand, the district court increased the sentence on the remaining counts, and the Second Circuit affirmed, rejecting the petitioner’s double jeopardy claims on grounds similar to those we have stated here. 676 F.2d at 917-18.
Heflin and Johnson establish that, in the sentence correction context, motions under Rule 35 and petitions under Section 2255 are interchangeable. 358 U.S. at 417-18, 79 S.Ct. at 452-53; 619 F.2d at 368. Each provision states that prisoners may move to correct “the sentence.” Accordingly, the Second Circuit’s McClain decisions are direct authority for what that district court did in Henry’s case, as are the Rule 35 decisions of our own court, Johnson, supra, and of the Sixth Circuit. Moore, supra. See also Sullivan v. United States, 485 F.2d 1352, 1354 (5th Cir.1973) (suggesting in dicta that in a § 2255 case, appeals court may vacate all sentences and remand for resen-tencing within constitutional limits); Gonzalez v. United States, 247 F.2d 489 (1st Cir.1957) (approving change of sentence after remand in a § 2255 case), cert. denied, 356 U.S. 913, 78 S.Ct. 672, 2 L.Ed.2d 586 (1958); Phillips v. Biddle, 15 F.2d 40, 41 (8th Cir.1926) (cited in McClain; remand for re-sentencing in habeas corpus case to comport *335with original sentencing plan), cert. denied, 274 U.S. 735, 47 S.Ct. 576, 71 L.Ed. 1311 (1927).
We see little to be gained by augmenting this already prolix opinion with a discussion of every other case supporting our views.23 Significant authority supports both sides in the controversy before us. Since none of it bound us en banc, we were free to achieve the right result — one that made sense of Rule 35 in the context of the law as it exists today. This is, however, not to be.
The choice we face today is between a mechanical approach derived in major part from an 1874 view of double jeopardy — now long discredited, but pressed upon us by Henry as frozen in Rule 35 like a mastodon in a glacier — and a view of Rule 35 as developing to accommodate a rational approach informed by modern constitutional authority. A majority of the court chooses the former. Since we would unhesitatingly choose the latter, we respectfully dissent.
As matters have worked out, none of today’s opinions commands a majority.
. As we shall see shortly, one of his points pertains to a peculiar circumstance of his case and a like one in James’s. We discuss Henry’s case only, since James’s arises out of the same criminal incident, as well as the same trial. Thus they present the same issues.
. A prophetic partial dissent argued that Simpson ’s rationale went further, forbidding application of the general firearms enhancement statute (§ 924(c)) in situations to which the more specific one, Section 111, applies. 586 F.2d at 376 (Rubin, J. dissenting).
. “Considering 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), the sentence is vacated and the case is remanded to the district court for further proceedings consistent with that decision.” United States v. Henry, 621 F.2d 763 (5th Cir.1980) (en banc) (footnote omitted).
. To be clearly distinguished is the case in which the facts about offense or offender do change on appeal. Suppose that X has been convicted of two counts of mail fraud for mailing letters A and B on the same occasion, pursuant to the same scheme, and is sentenced to one year on each count. On appeal it is held that the evidence does not support the jury finding that X mailed letter B. No fact relevant to the sentence for fraudulently mailing letter A has changed, but X has committed one charged crime only and hence is (in some sense) only half as guilty as the sentencing court had believed when it imposed the aggregate two-year sentence. The slightly extraneous offense for mailing letter B has been found not proved; X has committed one crime, not two. Hence the sentencing plan remains rational and there is no occasion to remand for resentencing: none as to letter B, for it was not mailed by X, and none as to letter A because it was and X has the same prior record. But had a so-called general sentence of the sort we disapproved in Benson v. United States, 332 F.2d 288 (5th Cir.1964), been given — say, three years on the two counts — a remand would have been required because the sentencing facts were changed on appeal.
Henry, by contrast, is the same Henry today as he always has been and his offense is the same offense. Nothing has been found not proved. All that has happened is that part of the law thought applicable to him has been found not to apply. That which remains applicable, however, authorizes his present sentence and more and requires no change in the sentencing plan — merely a revision in its components to carry it out.
. To be sure, the majority can point out in response to these observations that, both be*323fore and after Rule 35, we have on occasion remanded when it was clear that the district court’s only option was to vacate the invalid portion of a sentence, leaving the rest intact— in short, that we have engaged in useless acts before. See, e.g., White v. United States, 419 F.2d 374, 376 (5th Cir.1969), appeal after remand, 440 F.2d 978 (5th Cir.), cert. denied, 404 U.S. 839, 92 S.Ct. 129, 30 L.Ed.2d 72 (1971); Youst v. United States, 151 F.2d 666 (5th Cir.1945). All the same, while the point diminishes somewhat the force of our reasoning, that reasoning remains the most likely explanation for our earlier choice to remand rather than render.
.For that matter, even were we to conclude that our earlier mandate was intended to vacate only the § 924(c)(1) sentence, and hence that the district court was powerless to correct the others, if we had the power to vacate all sentences then, we have it and could do so now — remanding by an order that explicitly permitted a final, rational resentencing proceeding. Not only is this construction of our mandate less rational than the one we would reach, it also would require yet another round of judicial proceedings — a needless round. Thus, though not based upon considerations of judicial economy, our construction would further that salutary goal.
. By contrast, the plurality continues, Busic was a direct appeal in which all aspects of the judgment were brought before the court, thereby giving it jurisdiction under § 2106 over all sentences.
. As we explained above, although the trial judge increased the incremental sentence on neither remaining valid count — indeed, he reduced one from seven years to five — he did order that they run consecutively (for a total sentence of ten years) rather than concurrently (for a total of seven).
. 395 U.S. at 713, 89 S.Ct. at 2074. The longer sentence comprised the eight-year sentence that he received on retrial plus the time he had already served.
. This latter proposition — that those who seek new trial constitute a class subject to invidious discrimination by having their sentences increased — was summarily rejected by the Supreme Court and is no more. North Carolina v. Pearce, 395 U.S. 711, 722, 89 S.Ct. 2072, 2079, 23 L.Ed.2d 656 (1969).
.395 U.S. at 720, 89 S.Ct. at 2078, and thus, it seems to us, necessarily — if impliedly — disapproving any supposed mechanical limitation on *325a judge’s power to increase a sentence after service of it has begun.
. See 395 U.S. at 723, 89 S.Ct. at 2079.
. Our brethren of the Eleventh Circuit, with whom we have served and to whose expressions we give respectful attention, have taken the same view of Pearce in a very recent case of first impression there. United States v. Wasman, 700 F.2d 663 (11th Cir.1983). Was-man, having successfully appealed a first conviction, received a heavier sentence after his retrial for the same offense. Mindful of Pearce, the sentencing judge stated on the record his reason for imposing the heavier sentence: Wasman’s intervening conviction of an extraneous offense. That offense had been committed before his first trial and he was charged with it at that time; the conviction occurred between his two trials.
On appeal he contended that the heavier second sentence denied him due process because it was not based upon “identifiable conduct on the part of [Wasman] occurring after the time of the original sentencing proceeding.” North Carolina v. Pearce, 395 U.S. 711, 726, 89 S.Ct. 2072, 2081, 23 L.Ed.2d 656 (1969). This was factually accurate, since his conduct that occasioned the extraneous conviction had taken place before either trial for the offense that resulted in the heavier sentence.
Citing and quoting from numerous Supreme Court decisions handed down since Pearce, the Eleventh Circuit rejected Wasman’s narrow reading of it. The Court’s masterly discussion of the point is well-worth reading in its entirety. See 700 F.2d at 666-670. Here, we set out only a short portion:
The thrust of Pearce is that increased punishment after appeal and reconviction violates a defendant’s due process rights when it results from judicial vindictiveness. In setting forth its guidelines the Court’s express objective was to assure absence of such retaliatory motivation. Reading the Court’s Pearce opinion in its entirety and in light of the facts of that case, as we must, Armour & Co. v. Wantock, 323 U.S. 126, 132, 133, 65 S.Ct. 165, 168, 169, 89 L.Ed. 118 (1944), convinces us that increased sentences are not thereby limited to instances in which a defendant has committed an offense after the first trial. The target in Pearce was vindictive sentencing, not defendant misbehavior between trials. No reason exists for applying a phrase in the Pearce guidelines to circumstances bearing no relation to the purpose of those guidelines. There is on this record no evidence whatsoever that the enhancement here resulted from vindictiveness of Judge Roettger. Nor does Wasman argue that it did. In such circumstances, an increased sentence neither thwarts the purpose of Pearce and its guidelines nor offends constitutional due process considerations.
700 F.2d at 668 (footnote omitted).
. 395 U.S. at 720, 89 S.Ct. at 2078 (footnote omitted). The Court pointed to Stroud v. United States, 251 U.S. 15, 40 S.Ct. 50, 64 L.Ed. 103 (1919), as having established that principle.
. We reject the plurality’s suggestion that United States v. Addonizio, 442 U.S. 178, 99 S.Ct. 2235, 60 L.Ed.2d 805 (1979), was based upon notions of finality of sentences that prevent correction of a final judgment to implement the sentencing intent of the trial judge. In Addonizio, a Section 2255 petitioner argued that post-conviction changes in Parole Commission policies had frustrated the sentencing court’s expectation éf the time he would serve; the district court agreed and reduced the sentence to conform to its prior intent. For two reasons, the Supreme Court *328decided that this claim did not provide a jurisdictional basis for a Section 2255 attack. Neither supports the plurality’s theory of finality.
First, Addonizio’s claimed error met none of the established standards for collateral attack which have been narrowly limited to further the policy favoring finality of judgments. Id. at 184-86 & n. 11, 99 S.Ct. at 2239-41 & n. 11, 60 L.Ed.2d at 811-12 & n. 11. By contrast, Rule 35 is, as a motion in the original case, a broader exception to the finality of judgments than Section 2251». See, e.g., United States v. Shillingford, 586 F.2d 372, 375 (5th Cir.1978) (new decisions are more easily applied retroactively under Rule 35 than Section 2255). Second, the Court held that to allow a court to alter a sentence to implement what it had anticipated the Parole Board would do would eviscerate Congressional intent to vest the decision to release a prisoner in the executive branch. Id. at 188-90, 99 S.Ct. at 2242-43, 60 L.Ed.2d at 813-14. The district court in Henry’s case did not enforce its “subjective expectation” of what the executive branch should have done, it merely adhered to the objective fact of its prior sentencing plan and to Congressional intent as expressed in the statutory penalty limitations applied therein.
. Fully suffered it, having paid his fine.
. United States v. Busic, 639 F.2d at 949.
. “The Constitution does not require that sentencing should be a game in which a wrong move by the judge means immunity for the prisoner.” 449 U.S. at 135, 101 S.Ct. at 436, quoting Bozza v. United States, 330 U.S. 160, 166-67, 67 S.Ct. 645, 648, 91 L.Ed. 818 (1947).
“While Pearce dealt with the imposition of a new sentence after retrial rather than, as here, after appeal, that difference is no more than a conceptual nicety.” 449 U.S. at 135-36, 101 S.Ct. at 436-37, quoting North Carolina v. Pearce, 395 U.S. at 722, 89 S.Ct. at 2079.
“The Double Jeopardy Clause does not provide the defendant with the right to know at any specific moment in time what the exact limit of his punishment will turn out to be.” 449 U.S. at 137, 101 S.Ct. at 437.
.A preliminary draft added a treatise citation following the reference to “existing law.” Advisory Committee of Criminal Procedure, Federal Rules of Criminal Procedure, Second Preliminary Draft 132 (1944) (citing 5 G. Longs-dorf, Cyclopedia of Federal Procedure § 2468 (1929)).
. 18 U.S.C. § 3772 (1976) 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.”
a. 18 U.S.C. § 3772 (1976). See note 20, supra. Congress has made different grants of authority to the Supreme Court' to promulgate various rules of criminal procedure. Rules such as Rule 35, governing proceedings after verdict, are truly judge-made. They need not be reported to Congress, may be amended at any time, and become effective as the Court directs. Id. By contrast, rules governing pre-verdict proceedings must be reported to Congress and do not become effective until a statutory waiting period has passed. 18 U.S.C. § 3771 (1976). See generally 1 C. Wright, Federal Practice & Procedure: Criminal § 1 at 3-4 (2d ed. 1982).
. Remarks to the effect that various provisions “continue” or “restate” existing law are extremely common, almost as boilerplate, throughout the Advisory Committee Notes. See, e.g., Advisory Committee Note to Rule 3, 18 U.S.C. app. at 1403; Rule 7(e), id. at 1413 (“continues” existing law); Rule 24(b), id. at 1450 (“embodies” existing law); Rule 32(a), id. at 1456 (“restatement” of existing procedure). Given the frequency of such language, it is *331significant that no authority has been found interpreting it as the majority attempts to do. Moreover, when we compare such statements to others in which the Advisory Committee notes that a rule “introduces an addition to existing law,” e.g. Rule 21, id. at 1448; Rule 20, id. at 1447, we are convinced that the statement relied upon by the plurality was intended merely to notify practitioners that no change was made by the adoption of the Rule, not that no change could ever be made.
. Because Rule 35 motions are made in the original case, Heflin v. United States, 358 U.S. 415, 417-18, 79 S.Ct. 451, 452-53, 3 L.Ed.2d 407 (1959), new decisions are automatically applied retroactively therein. United States v. Shillingford, 586 F.2d 372, 375 (5th Cir.1978). By contrast, in collateral attacks such as § 2255 petitions, the retroactivity question must be independently addressed in each case. See Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965). Heflin approved the procedure of treating § 2255 petitions as Rule 35 motions where appropriate.
. For example, courts have frequently acted to preserve the original sentencing plan when sentences on selected counts of multicount indictments have been set aside on direct appeal. See, e.g., 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). Of course, there is also Busic, supra.