dissenting:
I join in Judge Gee’s dissenting opinion, and append these remarks only to emphasize what appears crucial to me here, namely, that counts II and III charged but a single offense, neither requiring nor involving proof of any fact or element that the other did not. In such circumstances, the presence of two counts should not of itself be determinative for our purposes. If the statute cited in each of counts II and III had been section 111, the unitary nature of the offense would be even more evident and the sentence illegality would relate equally to each of those two counts, permitting action under Rule 35 as to each. Of course, count III cited not section 111, the correct statute, but rather the inapplicable section 924(c)(1). However, under Fed.R.Crim. Proc. 7(c)(3) miscitation of the statute is not of itself controlling, except as it prejudices the accused. See Williams v. United States, 168 U.S. 382, 387-89, 18 S.Ct. 92, 93-94, 42 L.Ed. 509 (1897); United States v. Welch, 656 F.2d 1039, 1059 n. 26 (5th Cir.1981), cert. denied, 456 U.S. 915, 102 S.Ct. 1768, 72 L.Ed.2d 173 (1982); United States v. Duncan, 598 F.2d 839, 854 n. 11 (4th Cir.), cert. denied, 444 U.S. 871, 100 S.Ct. 148, 62 L.Ed.2d 96 (1979). Here, resentencing on the basis of section 111 and at a lesser level than originally imposed for the single offense involved in counts II and III has removed any prejudice.