(concurring) :
The purpose of the new rules announced today by the court is to guard against the possibility that the second judge, in imposing a more severe sentence, might to some degree be doing so to penalize the defendant for having exercised his right to appeal, and, in any event, to guard against the appearance of such a penalty as it might deter others from exercising their right to appeal.
I am in full agreement with the need for a rule which will prevent the imposition of any more severe sentence after retrial unless there is an affirmative showing that the sentence reflects conduct by the defendant occurring subsequent to the first sentencing or facts which were unknown to the first sentencing judge because of some action chargeable to the defendant. This leaves the second trial judge with some discretion. To this extent I would advocate the modification of the proposals of the Advisory Committee on Sentence and Review of the American Bar Association, adopted by the House of Delegates, in August, 1968. See fn. 10 of majority opinion.
While I agree with what Judge Moore says in his dissenting opinion about the desirability of adopting more complete standards after a suitable period of study, I see no need to delay here. The American Bar Association Standards have been promulgated and approved. By today’s decision we merely give effect to a suitable modification of such standards along the lines which Judge Moore himself seems to favor.
I also concur with the holding that the rule should be given retroactive application, since this can be done without serious disruption in the administration of justice. Cf. Mirra v. United States, 402 F.2d 888, 2d Cir., November 1, 1968. Of course, before the disposition of any subsequent motions under Rule 35 seeking a retroactive application of today’s *849decision the second sentencing judge should be given the opportunity to make a record of his reasons for the more severe sentence if he did not do so at the time he imposed the sentence. This, I take it, is the import of footnote 14 of the majority opinion.
It should also be noted that the American Bar Association, by action of its House of Delegates in February, 1968,1 approved proposed standards for Appellate Review of Sentences 2 which would give appellate courts the power to increase or decrease sentences. The adoption of such a measure by Congress naturally would empower a court of appeals to pass upon a second sentence imposed in circumstances similar to those confronting us in this case.
* * *
Circuit Judge IRVING R. KAUFMAN concurs in Chief Judge LUMBARD’S separate opinion as well as in Circuit Judge FRIENDLY’S opinion.
. ABA, Summary of Action House of Delegates, February 19-20, 1968, p. 6.
. ABA Advisory Comm. on Sentencing and Review, Standards Relating to Appellate Review of Sentences, Pt. III, §§ 3.1-3.3 (Tentative Draft, April, 1967), as amended, ABA Special Comm, on Minimum Standards for the Administration of Justice, Proposed Revisions of Standards Relating to Appellate Review of Sentences (1967).