(dissenting):
I concur with Judge Hunter’s view that 18 U.S.C. § 36511 does not permit five-year probation terms to be imposed consecutively. I feel compelled, however, to register additional disagreement with the majority’s view that 18 U.S.C. § 36532 and 18 U.S.C. § 4208(b)3, when read in combination, permit a new probation term to be imposed following probation revocation.4
I agree that when Lancer’s probation under Indictment 22119 was revoked he could have been imprisoned, in accordance with 18 U.S.C. § 3653, for a term not exceeding the unserved portion of his valid one-year sentence. Instead of requiring Lancer to serve the sentence originally imposed, however, the District Judge chose to commit him to the custody of the Attorney General for a three to six month study, citing 18 U.S.C. § 4208(b) as authority. Four months later, when the study was completed, the District Judge suspended execution of the remainder of the one-year sentence5 and placed petitioner on a new four-year and ten-month term of probation 6, again citing Section 4208(b) as authority.
*740From this peculiar sequence of events the majority concludes that the District Judge had the power to reimpose a new probation term after revoking Lancer’s first probation term. Stripped to its essentials, the majority holds that even though 18 U.S.C. § 3653 requires that a “sentence” be imposed following revocation of probation, the following three-step procedure permits reimposition of probation after its revocation: (1) Section 3653 requires the court to “sentence” a defendant following revocation; (2) Section 4208(b) authorizes a “sentence” which may be applied to Lancer; (3) Section 4208(b) permits imposition of probation following a three to six month diagnostic study.
I must take issue with the majority’s determination that the District Judge had the power to commit Lancer to a diagnostic study under Section 4208(b) after revoking his probation. Section 4208(b) is not an independent provision. It must be read with 4208(a). Standing alone, Subsection (b) lacks the essential directives for its implementation. Only when read in conjunction with the introductory sentence in Subsection (a)— “Upon entering a judgment of conviction, the court . . . when in its opinion the ends of justice . . .require that the defendant be sentenced to imprisonment for a term exceeding one year . . .[emphasis supplied]— do Subsections (b), (c) and (d) become intelligently operable. Notwithstanding the majority’s contention to the contrary, it is critical that Section 4208(b) be read on Subsection (a), so that both are available only where the authorized maximum period of imprisonment exceeds one year.
The various subsections of Section 4208 were intended to form an interrelated package of flexible sentencing tools for the district judge who imposes the original sentence entered upon conviction. Subsection (a) permits the sentencing judge, at his discretion, “to share with the executive branch the responsibility for determining how long a prisoner should actually serve.”7 Instead of merely imposing sentence and leaving parole eligibility to standard statutory criteria,8 the judge may fix a parole eligibility date at the time of sentencing or he may delegate parole eligibility to the parole board’s discretion. In either event, a diagnostic study is then made under Section 4208(c) and its results are used by the parole board. Subsection (b) apparently evolved from Congressional recognition that in particularly complex cases9 the sentencing judge would need detailed information on the prisoner’s criminal and social background before selecting among the various sentencing alternatives. Thus, Subsection (b) permits the district judge to have a Section 4208(c) diagnostic study prepared while tentatively imposing the statutory maximum sentence. After a maximum period of six months allowed for completion of the study, final sentence must be imposed.
Examination of the legislative history of Section 4208(b) discloses that the subsection was intended only for the use of the district judge who imposes the original sentence entered upon conviction. The Senate Report notes that
*741[Subsection (b)] would permit the court, in particularly complex cases, to commit the defendant to the Attorney General for a 3- to 6-month study. After the court had received a summary of the Attorney General’s findings, it could impose final sentence under any applicable statute. In effect this provision extends to a maximum period of 6 months in selected cases the court’s power to modify the sentence, now restricted to 60 days under rule 35, Rules of Criminal Procedure 10
Thus, Congress did not intend the study provisions of Sections 4208(b) and (c) to be used by district judges at any later stage of a criminal proceeding. Rule 35, as it existed at the time of the Senate Report, dealt only with a time limit within which the district judge was required to finalize the original sentence.11 The Senate’s reference to Rule 35 indicates that the exclusive concern of Subsection (b), as in Subsection (a), was the process of imposing the original sentence.
The notion that the various subsections of Section 4208 were intended to form a coordinated package of tools for use in the original sentencing process is further supported by a letter appended to the Senate Report. The Administrative Office of the United States Courts noted that:
The Judicial Conference feels that the sentencing judge before imposing final sentence, should be able to receive if he deems advisable a more complete study of the defendant than is available in the presentence investigation report. This observation and diagnosis would be extremely helpful to the court in making disposition in certain types of cases; particularly where a difficult medical, psychiatric, sex, or rehabilitative problem may be involved. Facilities for such observation and study are in existence but authority is lacking for the court to change a sentence after 2 months. This may not afford time to complete such a study. The proposed amendment would make the opportunity more certain.12
The majority’s determination that Subsection (b) may be used to diagnose those whose sentence is one year or less hinges on its argument that “[cjomplicat-ed factors, which a study by the Bureau of Prisons is designed to sort out, are just as likely to be present when the offense committed carries a maximum sentence of less than one year.” This argument ignores the point that the one-year limitation is unrelated to the presence or absence of “complicated factors.” Such factors are just as likely to be found in cases where a study is made under Subsection (a), yet the majority acknowledges that Subsection (a) is .governed by the one-year maximum sentence limitation. The clear reason for the limitation, as admitted by the Government in its supplemental brief in this case, is that “[v]ery little purpose would be served by causing a defendant whose maximum term is one year or less to undergo a six month diagnostic study.”
Since Lancer’s sentence could not have been for more than one year, he could not have been properly committed under Section 4208. Therefore, I cannot accept the majority’s three-step analysis whereby it concludes that, by using Section *7424208(b), a new probation term could have been imposed following probation revocation.
Despite the resistance of the majority to do so, it is imperative that there be a resolution of the question: Is probation a “sentence” which may be imposed under the authority of 18 U.S.C. § 3653 following probation revocation? An examination of Sections 3651 (imposition of probation) and 3653 (revocation of probation) reveals that Congress has clearly distinguished between the terms “probation” and “sentence.” Section 3651 permits the district court to “suspend the . execution of [the imposed] sentence and place the defendant on probation . . Section 3653 gives the district court the power to “revoke the probation and require [the defendant] to serve the sentence [originally] imposed [but suspended under Section 3651], or any lesser sentence . ..” [Emphasis supplied.] In the face of this clear legislative distinction it must be concluded that the district court’s power to “sentence” under Section 3653 following probation revocation does not encompass the power to suspend sentence again and reimpose probation.13 Accord United States v. Fultz, 482 F.2d 1 (8th Cir. 1973); Fox v. United States, 354 F.2d 752, 754 (10th Cir. 1965); United States v. Buchanan, 340 F.Supp. 1285 (E.D.N.C.1972); cf. Roberts v. United States, 320 U.S. 264, 266, 64 S.Ct. 113, 88 L.Ed. 41 (1943).
Finally, as to the disposition of the six indictments, 22153, 22160, 22163, 22164, 22172 and 22228, I agree with the majority that suspending imposition of sentence without placing the defendant on probation is a nullity. Ex parte United States, 242 U.S. 27, 37 S.Ct. 72, 61 L.Ed. 129 (1916). Instead of the majority’s-mere suggestion that the District Judge dispose of these indictments, I would require that he do so. I would grant the motion to vacate sentence on all eight indictments and remand for disposition consistent with the views of Judge Hunter and those expressed herein.
. See note 2 of the majority opinion.
. See note 3 of majority opinion.
. See note 4 of the majority opinion.
. See pp. 726-730 of the majority opinion.
. The District Judge believed that the sentence he was suspending was of nine years and ten months duration. Consonant with the majority’s treatment, what the District Judge purported to do has been translated into what he was permitted to do. See the discussion of Lancer’s maximum sentence in Part III of the majority opinion.
. The four year and ten month probation term imposed under Indictment 22119 was to be followed by a consecutive five year probation term under Indictment 22173. See reference to the District Judge’s order dated April 9, 1968 at pp. 723, 724 of the majority opinion.
. Senate Report No. 2013 reprinted in 1958 U.S.Code Cong. & Admin.News, 85th Cong., 2d Sess., at p. 3892.
. Statutory criteria for a federal prisoner’s parole eligibility are delineated in 18 U.S.C. § 4202.
. In the ordinary case rule 32(c), Federal Rules of Criminal Procedure, provides that:
(1) The probation service of the court shall make a presentence investigation and report to the court before the imposition of sentence or the granting of probation unless the court otherwise directs.
(2) The report of the presentence investigation shall contain any prior criminal record of the defendant and such information about his characteristics, his financial condition and the circumstances affecting his behavior as may be helpful in imposing sentence or in granting probation or in the correctional treatment of the defendant, and such other information as may be required by the Court. .
. 1958 U.S.Code Cong. & Admin.News, 85th Cong., 2d Sess. p. 3892. A similar statement appears in the House Conference Report. See Id. at pp. 3905-3906.
. As it existed in 1958, Rule 35, Fed.R. Crim.P., provided:
The court may correct an illegal sentence at any time. The court may reduce a sentence within 60 days after the sentence is imposed, or within 60 days after receipt by the court of a mandate issued upon affirmance of the judgment or dismissal of the appeal, or within 60 days after receipt of an order of the Supreme Court denying an application for a writ of certiorari.
. 1958 U.S.Code Cong. & Admin.News, 85th Cong., 2d Sess. p. 3898.
. Mr. Eugene N. Barkin, Legal Counsel to the Bureau of Prisons, in a statement quoted by the majority at p. 730 of its opinion, seems to agree with this point:
It seems to me that the language of [Section 3653] makes it quite clear that once having revoked probation, the court must then impose a sentence. It may not revoke and thereupon reinstate the defendant to probation.
Barkin, Sentencing the Adult Offender, Fed. Probation Q., June 1962, at 13-14.
Mr. Barkin goes on to argue that probation may be reimposed following probation revocation through the use of Section 4208(b). He does not inform us, however, whether he would adopt the majority’s theory that Section 4208(b) is available where the term of imprisonment may not exceed one year.