(dissenting).
I regret to find myself unable to join with Chief Judge CHASE and Judge HINCKS to the extent that they hold the sentence imposed by Judge Ryan was illegal.
While I agree, for the reasons given by Judge CHASE, that the re-sentencing cannot be regarded as a sentencing de novo, it does not seem to me necessarily to follow that the District Court was limited to imposing a maximum prison term of 10 years. That would depend upon how we construe the Supreme Court’s mandate.
Had the Supreme Court regarded this Court’s reversal on Counts 1 and 2 as automatically resulting in reducing the original total sentence to 10 years, in consequence of the sentences on Counts 3 and 4, as recorded, being concurrent, the Supreme Court could readily have effected this result by its mandate. Spirou v. United States, 2 Cir., 24 F.2d 796, cer-tiorari denied, 1928, 277 U.S. 596, 48 S. Ct. 559, 72 L.Ed. 1006; Dodge v. United States, 2 Cir., 258 F. 300, certiorari denied, 1919, 250 U.S. 660, 40 S.Ct. 10, 63 L.Ed. 1194. From the fact that the Supreme Court did not do so, it seems reasonable to infer that its mandate intended something more. The answer, I think, is to be found in the ambiguity arising from the difference between the original sentence as it appears in the stenographer’s minutes and as it was erroneously recorded by the Clerk. I interpret the Supreme Court’s mandate as requiring the District Court to impose sentence in conformity with that imposed by Judge Stone, as affected by the reversal on Counts 1 and 2, and not as a direction to sentence de novo. This imposed on Judge Ryan the duty of ascertaining Judge Stone’s intention, and in effect involved the correction of the sentence as improperly recorded by the *843Clerk, Rule 36 F.R.Crim.Proc., 18 U.S.C.A. Only the District Court had power to do this. Meredith v. Gough, 5 Cir., 168 F.2d 193, certiorari denied, 1948, 335 U.S. 873, 69 S.Ct. 161, 93 L.Ed. 417. And this is clearly the premise upon which Judge Ryan acted. I cannot agree that Judge Stone, had he been available, would not have had power to correct the recorded sentence after the reversal on Counts 1 and 2, even though service of the sentence had begun. Rule 36 gives the Court power to correct clerical errors “at any time”.
As I view the matter, the question before us is simply whether Judge Ryan’s interpretation of the sentence as imposed by Judge Stone was so unreasonable as to amount to a sentencing of the defendant de novo. I think manifestly it was not. I consider there is a real difference between a sentence where the terms on Counts 1-2-4 are to run consecutively and that on Count 3 is expressed only to run concurrently with those on Counts 1-2 (as imposed by Judge Stone), and a sentence where the terms on Counts 1-2-4 are expressed to run consecutively with each other and also concurrently with that on Count 3 (as recorded by the Clerk). For if the sentence on Count 4 is consecutive to those on Counts 1-2, with which the sentence on Count 3 is concurrent, it would seem to follow without any real ambiguity that Count 4 is-also to be consecutive with Count 3, since in effect the prison term on Count 3 is the same as that imposed under Counts 1-2. And, again from the point of view of seeking out Judge Stone’s intent, this conclusion is buttressed by his later order attempting to correct the Clerk’s erroneous recording of the sentence by eliminating the language expressly making the sentence on Count 3 concurrent with that on Count 4, but letting it stand as to the sentence on Count 3 running concurrently with those on Counts 1-2.
For these reasons, I think the rule that a -sentence on which service has commenced cannot be increased, has no application here, and in my opinion the judgment below should be affirmed, without modification.