(concurring in part and dissenting in part):
I concur in the affirmance of the convictions in Nos. 22344 and 22345 but dissent from the vacation of the sentence in No. 22344 and the remand of the case *210for resentencing for essentially the same reasons set forth in my dissenting opinion in United States v. Marshall, 142 U.S.App.D.C. -, 440 F.2d 195 (decided June 30, 1970) (en banc), cert. denied, 400 U.S. 909, 91 S.Ct. 153, 27 L.Ed. 148 (1970). In my view since no substantial error to the prejudice of appellant appears in the record or is even claimed in the briefs outside the record, the judgment of the trial court should be affirmed without prejudice to the right of appellant to bring subsequent proceedings under 28 U.S.C. § 2255, or Rule 35 of the Federal Rules of Criminal Procedure, or any other law or rule that he may consider authorizes his claim. See Berryman v. United States (No. 22759, January 9, 1970, Xerox form only); United States v. Dorman, 140 U.S.App.D.C. 313, 435 F.2d 385 (decided April 15, 1970) (en banc), where cases were similarly affirmed without prejudice on records and briefs which provided more support for claims of substantial error than is here present. To follow the same rule here would effect an enormous saving of judicial time and not interfere with any substantial right of appellant.
I
Emanuel Clemons (hereafter Clemons) was convicted by a jury on June 10, 1968 of carrying a dangerous weapon in violation of D.C. Code § 22-3204. On June 20, 1968, the United States Attorney served Clemons’ counsel with an “Information of Prior Conviction” describing a prior conviction of Clemons for robbery and on June 25, 1968 filed said document with the court with proof of service. The Information stated:
The United States Attorney for the District of Columbia informs the Court as follows:
1. That on June 10, 1968, one Emanuel Clemons was found guilty in the above captioned case of carrying a deadly weapon on or about September 29, 1967, an offense proscribed by 22 D.C.C. See. 3204, and is now awaiting sentence of the Court;
2. That the said Emanuel Clemons is the same Emanuel Clemons who was convicted in the District of Columbia on May 29, 1958 in the United States District Court for the District of Columbia for the offense of robbery, 22 D.C.C., Sec. 2901, Criminal Case No. 1162-67;
3. That the offense of carrying a deadly weapon is punishable by imprisonment for not more than ten years, when committed by a defendant who prior to his commission of that offense has been convicted in the District of Columbia of robbery;
4. In consideration of the foregoing, the Court is advised that said defendant in the above-captioned case may be sentenced to imprisonment for a term as long as but not more than 10 years. (Emphasis added).
Thereafter, Clemons came before the court for sentencing on July 19, 1968. At that time the court first inquired if defendant’s counsel had anything to say. Counsel’s response indicated that he knew full well the purpose of the hearing as he referred to the fact that he was “sure the court had a full and complete presentence investigation.” In addition, he addressed the court briefly and brought out certain points in an attempt to induce a moderate sentence, i. e., that Clemons had been steadily employed and had lived all his life in Washington. He asked the court to take these factors into consideration “in the imposition of sentence.”
The court next afforded Clemons an opportunity to make a statement and received the following response:
The Court: “Anything you wish to say, Mr. Clemons?”
Defendant Clemons: “No, sir.”
Immediately after the defendant stated that he did not wish to say anything, the court sentenced Clemons to “three to ten years.” To this sentence neither Clemons nor his counsel expressed any surprise and voiced no objection. Clemons’ counsel then stated to the court that he had advised Clemons of his right *211to appeal and would assist him in the preparation of the necessary papers, and requested the court to set bail pending appeal. To this request the court replied :
“In view of his record, which includes a record of dangerous weapons and violence, I am not going to let him out. I will deny that request.” (Emphasis added).
This reference by the court to Clemons' prior “record of dangerous weapons” (emphasis added) did not invoke any response or denial from either Clemons or his counsel.
On this appeal, Clemons contends that the sentence in excess of one year is invalid because the prosecution failed to present any evidence that Clemons had a prior felony conviction for robbery. The Government, however, did serve the Information on appellant and file it, with proof of such service, with the court. This operated to bring appellant’s prior conviction in the same court on May 29, 1958 for robbery in violation of D.C. Code § 22-2901 to the judicial notice of the court. It is clear that a court may take judicial notice of its own records1 and that the court, in the absence of any denial by the defendant, was entitled to rely upon the general rule that identity of names (Emanuel Clemons in both instances) will be accepted as prima facie evidence of identity of persons.2 However, in the event Clemons had denied the prior conviction or requested proof thereof the Government would have been required to prove the prior conviction. A number of other features presented by such a set of eircumstances are fully set forth in my dissenting opinion in United States v. Marshall, supra, and need not be repeated here.
There has never been a denial by either Clemons or his attorney that the Information of Prior Conviction was served prior to sentencing and that they were thus advised that the court had been informed of the prior conviction and were on notice. The Government claimed in the Information and therein gave notice to appellant that Clemons “may be sentenced to imprisonment for a term as long as but not more than ten years.” Nor was there any denial, or intimation of any denial, by either Emanuel Clemons or his counsel of the allegation in the Information that the Emanuel Clemons who was before the court for sentencing was the same Emanuel Clemons with the prior conviction described in the Information. Having notice of the Government’s claim that an enlarged sentence was permissible because of Clemons’ prior conviction and having failed to deny the prior conviction when he and his counsel had the opportunity to do so, the court was entitled to rely upon the Information of Prior Conviction which had brought such conviction to the court’s judicial notice by filing same with proof of service upon appellant’s counsel.
It does not appear to me that anything substantial can be gained by remanding the case. If appellant believes he has a meritorious basis upon which to attack the sentence on the issue of identity he may do so by motion before the trial judge.3 My prior dissent in *212Marshall, supra, fully outlines the procedures to be followed in such circumstances.
These include many of the features that Congress has now prescribed in the “District of Columbia Court Reform and Criminal Procedure Act of 1970,” Pub. Law 91-358, 91st Cong., 2d Sess., July 29, 1970, 84 Stat. 473, which are embodied in its amendments to D.C. Code § 23-111 effective February 1, 1971. The new Act requires the Information to be filed prior to trial or before entry of a plea of guilty, requires the current offense to be charged by indictment if an enlarged sentence in excess of three years may be imposed and authorizes continuances to ascertain if prior convictions exist. It further specifies that the trial judge before entry of sentence shall inquire of the accused whether he “affirms or denies” the alleged prior conviction and notify him that he cannot attack the prior conviction after sentence. If the accused denies any allegation of the information of previous conviction, or claims that any conviction alleged is invalid, “he shall file a written response to the information.” 4 But more importantly in the context of this case where no substantial prejudice is claimed by virtue of the court’s failure to inquire further of defendant at his allocution,
“If the person files no response to the information * * * the court shall proceed to impose sentence upon him as provided by law.” D.C. Code § 23-111 (d) (1), effective February 1, 1971.
Moreover, the embodiment of these rules into statutory form does not exalt them above constitutional and other similar statutory requirements so as to exempt them from the requirement applicable to the appellate courts that'reversible error should “affect substantial rights.” 5
II
With reference to the majority opinion it is my view that the record on appeal to this court does not present any error, defect, irregularity or variance affecting any substantial right of the appellant.6 Nor does the majority opinion point to any such error, instead it rests its decision upon several fanciful possibilities of prejudice which it conjures up and which have never by appellant been claimed either in the trial court or here.
Both Marshall and the majority opinion here state:
When the proof is introduced in the presence of the defendant meaningful opportunity is afforded, which might otherwise be unavailable, to enable the accused in the exercise of his right of allocution to advance any reasons he might have why the court should not enlarge the sentence because of his past record.
This, of course, is one of the traditional reasons for allowing the right of allocution but it is not a sufficient reason to ignore the rule that “Any * * * irregularity or variance * * * which does not affect substantial rights shall be disregarded.”7 Here, Clemons was afforded his right of allocution after due notice was given that he was subject to an enlarged sentence because of his prior conviction, and no advantage would inure to Clemons’ benefit through the exercise of the right of allocution by *213his being afforded an additional opportunity to comment on his prior conviction following the introduction into evidence in his presence of a certified copy of the prior conviction. The certified copy of prior conviction and the Information of Prior Conviction convey essentially the same information. While the timing may be different, the Information may be more meaningful with respect to the consequences of the prior conviction because it describes the effect that the prior conviction might have upon the sentence that may be adjudged for the instant offense. It also affords the accused more time to consider the matter and prepare any remarks he may wish to make. Also, Clemons was afforded his right of allocution at the time of sentencing and thus did have an opportunity to say everything in response to the Information of Prior Conviction that he could with respect to the certified copy of prior conviction. And here he does not make any showing or claim that any additional benefit would inure to his advantage if he were afforded a right of allocution after introduction of the certified copy of the conviction that was not equally available to him with respect to the Information. To hold that failure to afford the mere abstract right to exercise the right of allocution in such circumstances would constitute reversible error would elevate such right above the requirements of the harmless error rule and even federal constitutional errors do not occupy such exalted and pre-eminent status. The basic statement of the rule was laid down by the Supreme Court as follows:
We are urged by petitioners to hold that all federal constitutional errors, regardless of the facts and circumstances, must always be deemed harmful. * * * We decline to adopt any such rule. * * * We conclude that there may be some constitutional errors which in the setting of a particular case are so unimportant and insignificant that they may, consistent with the Federal Constitution, be deemed harmless, not requiring the automatic reversal of the conviction.
Chapman v. California, 386 U.S. 18, 21-22, 87 S.Ct. 824, 827 (1967).
Decisions applying that rule are: Lockett v. United States, 390 F.2d 168, 174 (9th Cir.), cert. denied, 393 U.S. 877, 89 S.Ct. 175, 21 L.Ed.2d 149 (1968) (search and seizure without search warrant) ; United States v. Reed, 392 F.2d 865, 867-868 (7th Cir.), cert. denied, 393 U.S. 984, 89 S.Ct. 457, 21 L.Ed.2d 445 (1968) (search and seizure without search warrant). Also in Roeth v. United States, 380 F.2d 755, 757 (5th Cir. 1967), it was held that failure to notify a defendant in advance that he was to be resentenced was at most harmless error; and in United States v. Bell, 345 F.2d 354, 356 (7th Cir. 1965), that failure of the United States Attorney to file information of .prior convictions before sentencing was harmless error and imposition of second sentence did not place defendant in double jeopardy. Knight v. United States, 225 F.2d 55, 57 (9th Cir.), cert. denied, 350 U.S. 890, 76 S.Ct. 148, 100 L.Ed. 784 (1955), held that the failure to file an information of prior conviction as required by the Boggs Act (26 U.S.C. § 2557(b)) where defendant had admitted his identity in open court was harmless error. In United States v. Duhart, 269 F.2d 113, 115-116 (2d Cir. 1959), under substantially similar circumstances, the court upheld the original sentence adjudged without the filing of the Information required by the statute and in support thereof cited the harmless error rule.
All these cases have some slight variations from the facts which exist here, but in substance they are all practically the same. If anything the facts here are stronger because the Information giving appellant notice was served and filed, the court could take judicial notice of the prior conviction in its own court, the accused was represented by counsel throughout and both counsel and the accused were afforded an opportunity in open court to comment on the matter. Thus, in my view prejudicial error is *214not demonstrated to exist in the record (nor is any claimed in appellant’s brief) and hence there is no basis upon which an appellate court could properly act to remand the case. We are not reviewing any matter that has been passed upon by the trial court.
In my opinion the proper procedure for a convicted offender in the position of Clemons, if he considers he has been improperly sentenced, is to attack the sentence by a motion directed to the trial court under 28 U.S.C. § 2255, or under Rule 35, Federal Rules of Criminal Procedure, for correction or reduction of sentence, make a record of his contentions and obtain a ruling by the trial court thereon. Then if his motion is denied on appeal we can fulfill our proper function of reviewing the record and decision of the trial court. We now have a record here but we have no decision by the trial court in any way related thereto. Following such loose appellate procedures in this case and Marshall, supra, has resulted in two panels of judges of this court considering two cases at length, writing and circulating opinions, then the entire court reconsidering the two cases en banc and writing and circulating opinions. All this has caused a delay of over a year in deciding the case,8 and all of this does not dispose of the case. It merely sends the case back for consideration of unsubstantial issues which appellant has never presented to any court — trial or appellate. All of this could have been eliminated.
In closing I feel it necessary to point out that in my view this case, like Marshall, supra, is controlled by our decision in Kendrick v. United States, 99 U.S.App.D.C. 173, 238 F.2d 34 (1956), and not by Jackson v. United States, supra. Regardless of all the pure assertion in the majority opinion, it is my view that they cannot apply Jackson, where no Information of Prior Conviction was served or filed, to Clemons’ situation here. In Jackson the required notice was not given, whereas in Clemons it was given. Clemons is thus identical on the essential facts to Kendrick, supra, and a similar result should obtain.
The majority opinion argues that proof of the prior conviction was not required in Kendrick because the accused had admitted such fact on cross examination. However, the situation there is not substantially different from the situation here where the existence of the prior conviction is admitted in Clemons’ bail request filed by his attorney and was not denied by either Clemons or his attorney when immediately following his sentencing the sentencing judge remarked that Clemons’ “record * * * includes a record of dangerous weapons and violence.” But I submit that the real reason proof was not required in Kendrick was because the Information had been served and filed and the accused thus placed on notice. The essential difference between Jackson where no Information was filed, and Kendrick where it was filed, was that in Kendrick he had notice that the prior conviction was going to be used against him for an enlarged sentence and in Jackson he did not have such notice. I would thus base my position not on the existence of casual proof of the prior conviction but on the fact that the due process requirement of proper notice and opportunity to be heard has been fully complied with and the accused’s record thus brought to the judicial notice of the court.9 I would affirm.
*215I am authorized to state that Circuit Judge McGOWAN concurs in the foregoing opinion.
. Chandler v. United States, 378 F.2d 906, 909-910 (9th Cir. 1967) ; United States v. Marcello, 280 F.Supp. 510, 521 n. 4 (E.D.La.1968) ; United States v. Maxwell, 137 F.Supp. 298, 305 (W.D.Mo. 1955), aff’d on other grounds, 235 F.2d 930 (8th Cir.), cert. denied, 352 U.S. 943, 77 S.Ct. 266, 1 L.Ed.2d 239 (1956). In fact it is recognized that a federal district court may take judicial notice of judicial proceedings in a different federal court. Wells v. United States, 318 U.S. 257, 260, 63 S.Ct. 582, 87 L.Ed. 746 (1943) ; Hood v. United States, 152 F.2d 431, 435 (8th Cir. 1946).
. Jacobs v. United States, 58 App.D.C. 62, 63, 24 F.2d 890, 891 (1928).
. The validity of such procedure is recognized by Jackson v. United States, 95 U.S.App.D.C. 328, 221 F.2d 883 (1955), and reference to its availability seems sufficient without ordering a potentially useless remand.
. D.C. Code § 23-lll(c) (1), effective February 1, 1971 (emphasis added).
. Fed.R.Crim.P. 52(a) ; and see Chapman v. California, 386 U.S. 18, 21-22, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) ; and cases dealing with failure to timely file informations under the sentencing procedures prescribed by the Boggs Act, United States v. Bell, 345 F.2d 354, 356 (7th Cir. 1965) ; United States v. Duhart, 269 F.2d 113, 115-116 (2d Cir. 1959) ; Knight v. United States, 225 F.2d 55, 57 (9th Cir.), cert. denied, 350 U.S. 890, 76 S.Ct. 148, 100 L.Ed. 784 (1955) ; and see later discussion at pp. 213-214 infra.
. Fed.R.Crim.P. 52(a).
. Id.
. The appeal was argued on September 18, 1969.
. The majority opinion asserts that “the proceeding is criminal in character * * * as much as any other that paves the way to prison,” but this mischaraeterizes the sentencing proceeding. In McDonald v. Massachusetts, 180 U.S. 311, 313, 21 S.Ct. 389, 390, 45 L.Ed. 542 (1901), the Supreme Court in referring to a similar proceeding stated, “The allegation of previous convictions is not a distinct charge of crimes, but is necessary to bring the case within the statute, and goes to the punishment only.” (Em*215phasis added.) See Chandler v. Fretag, 348 U.S. 3, 7, 8, 75 S.Ct. 1 (1954). In another case the Court also stated, in referring to the filing of an information of prior conviction, that “By this proceeding he was not held to answer for an offense; the information did not allege crime.” Graham v. West Virginia, 224 U.S. 616, 624, 32 S.Ct. 583, 586, 56 L.Ed. 917 (1912). (Emphasis added.) Undoubtedly there are substantial differences between such a sentencing proceeding and a true criminal proceeding and the court invites trouble by failing to recognize this. Actually the sentencing proceeding is sui generis and should be so considered. It is a part of a criminal proceeding but does not charge a separate crime.