ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC
PER CURIAM:Resnick’s Petition for Rehearing urges that his two consecutive five year sentences are constitutionally infirm under the doctrine of North Carolina v. Pearce, 1961, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656. The point that this sentence is invalid because it is harsher than the two four year concurrent sentences imposed by the Court in Resnick’s second trial which we reversed in United States v. Resnick, 5 Cir. 1972, 455 F.2d 1127, was not raised in the trial court or in the briefs on appeal of this conviction.
*359Nevertheless there is clearly (albeit belatedly) raised the possibility of constitutional violation in the imposition of consecutive five year confinement sentences following Resnick’s last trial. We decline to consider this question until it is first passed upon by the district court. Rule 35, F.R.Crim.P., allows correction of an illegal sentence by a trial court at any time, and reduction of sentence by the trial court within 120 days of the going down of our mandate of affirmance. Without question then the issue based upon North Carolina v. Pearce may be presented to the district court upon remand.
The Petition for Rehearing is denied and no member of this panel nor Judge in regular active service on the Court having requested that the Court be polled on rehearing en banc (Rule 35, Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12) the Petition for Rehearing En Banc is denied.