(dissenting in part).
Since the inception of our federal judicial system in 1789, the appellate courts have been empowered to “affirm, modify, vacate, set aside or reverse any-judgment, decree, or order * * * and direct the entry of such appropriate judgment, * * * as may be just under the circumstances.” Title 28 U. S.C.A. § 2106, 62 Stat. 963. While the appellate courts have repeatedly denied any such power, they have done so without reference to Section 2106. Judge Frank eschewed consideration of the statute in Rosenberg only because after sixty years of denying power of appellate review, he thought the Supreme Court alone should decide whether the statute conferred authority to reduce the *469sentence of a district court which was within the statutory limits.
But no federal court has ever said that the statute does not mean what it plainly says. Indeed, the statute has been made specifically applicable to the appellate review of criminal cases with authority to remand the case and direct the entry of an “appropriate judgment * * * as may be just under the circumstances.” See Bryan v. United States, 338 U.S. 552, 558, 70 S.Ct. 317, 320. State courts have construed similar statutes to authorize review and reduction of punishment within the prescribed limits. See eases collected 89 A. L.R. 295. And, this power has been extended to modify a judgment inflicting the death penalty. See Fritz v. State, 8 Okl.Cr. 342, 128 P. 170.
We have recognized appellate authority to review the criminal penalties which are clearly and manifestly cruel and unusual. Schultz v. Zerbst, 10 Cir., 73 F.2d 668, 670; Hayes v. United States, 10 Cir., 238 F.2d 318. To be sure, we have been most reluctant to interfere with the sentencing process, and I have been unable to find any case where we have assayed to exercise that power. We have always been content to leave the matter within the sound discretion of the trial court, and that is where it belongs. But that does not mean that the appellate courts should abnegate a duty imposed by statute when manifest justice requires the exercise of that power. Because we will not ordinarily interfere with a sentence which is within statutory limits does not mean that we are not empowered to do so when it would be manifestly “just under the circumstances.”
We all agree that the sentence in this case is “greater than should have been imposed.” In these circumstances, I would either modify the sentence and direct the entry of a judgment accordingly, or I would say that the sentence is grossly excessive and remand the case for imposition of another sentence in consonance with our views.