dissenting:
At a superficial first glance one is tempted to say that the convicted appellant here had no ground for complaint when his sentences of death plus five to fifteen years were changed to life imprisonment plus five to fifteen years, even though the resentencing of five to fifteen years was made consecutive to the life sentence instead of being automatically concurrent with the death sentence. One would assume that the appellant prefers life plus any term of years to a death sentence, and therefore would have no rightful complaint under the double jeopardy clause that the resentencing imposed a more severe penalty upon him. But the careful analysis of Judge Fahy, shows that indeed they were two separate offenses, there were two separate sentences the first time, there were two separate sentences at the resentencing; so the sentence for robbery of five to fifteen years was increased or made more severe because it was made consecutive instead of being concurrent as the law made it the first time.
Nevertheless, I suggest that an even more careful look will show that the first superficial impression was correct; whether considered with the sentences combined or *388sentences separate, appellant’s sentence the second time is lighter or no heavier than the first, and therefore is not subject to challenge under the double jeopardy clause.
The Government argues that the second sentence was not a more severe sentence than the first, because the sentence as a whole was reduced from death plus a concurrent sentence of five to fifteen years to life imprisonment plus a consecutive sentence of five to fifteen years. The Government’s position is valid if, but only if, it is proper to link the two sentences together. The majority rejects this argument, saying:
There was no single combined sentence imposed in this case either originally or after the remand, covering in one sentence the penalties for murder and robbery. In each instance the sentence for the murder and that for the robbery were imposed for each crime alone. The sentence for the robbery originally entered was altered on the remand by making it consecutive to the sentence for the murder. This does raise the question whether the alteration increased or made more severe the previously imposed sentence for the robbery, thereby placing appellant twice in jeopardy for that offense. (197 U.S.App.D.C. -, 607 F.2d 386)
So the majority opinion rejects the theory of linkage between the two separate sentences. Now, please observe closely, how does the majority opinion show that the five-to-fifteen-year consecutive sentence became greater than the five-to-fifteen-year concurrent sentence? Only by linking the five-to-fifteen-year sentence with the other separate sentence.
[W]hen the death sentence was replaced by the life sentence after appellant had begun to serve the robbery sentence, the change in the latter to consecutive to the life sentence had the effect, if allowed to stand, of impermissibly extending the time appellant would be required to be imprisoned due to the robbery conviction.
Appellant will be eligible for parole under the life sentence after serving twenty years (D.C.Code Title 22, § 2404); during this period of twenty years he would complete a concurrent robbery sentence of five to fifteen years, but were that sentence to remain as consecutive to the life sentence he would be required to remain in prison, additionally, for at least the minimum period necessary to be served under the robbery sentence before being eligible for parole. This alteration in the robbery sentence thus increased its severity and would have the effect, as has been pointed out, of increasing the time appellant would be liable to be imprisoned for the robbery. (197 U.S.App.D.C. -, 607 F.2d 387)
The majority thus demonstrates that the five-to-fifteen-year consecutive sentence becomes greater than the previous five-to-fifteen-year concurrent sentence only because of its linkage to the other “separate” sentence for murder. This is precisely the same linkage which the Government argues should be taken into consideration in assessing whether the appellant’s sentence was increased or not on the remand.
On the other hand, if each sentence must stand on its own bottom, without being added to or subtracted from or considered with the other separate sentence, then the five-to-fifteen-year sentence remains the same whether it is denominated consecutive or concurrent. Denomination of a sentence as concurrent or consecutive is meaningless in its effect on the prisoner until it is considered in connection with another sentence.
The consecutive sentence only becomes greater than the concurrent sentence if it is linked to the other separate sentence of death or life imprisonment. If it is logical to have a linkage, the linkage must be applied at both times we consider it. If we now must consider the five-to-fifteen-year robbery sentence as linked to the sentence for murder, whatever value it is, as the majority opinion so holds, then it is logical to consider the five-to-fifteen-year robbery sentence of the original sentencing in its relation to the original death sentence for murder.
It is clear that if each combination of sentences is compared, then obviously life imprisonment with a consecutive five-to-fif*389teen-year sentence is less than death with a concurrent five-to-fifteen-year sentence. If the sentences on each offense are considered absolutely separately, then the five-to-fifteen concurrent or consecutive sentences are equivalent; it is only by bringing in the other separate sentence for murder, previously ruled out in the majority opinion, that the consecutive sentence becomes greater in its effect than the concurrent.1
The majority opinion cannot have it both ways. It cannot initially reject the Government’s argument linking the two separate sentences and valuing them as a combination on both the original sentencing and the remand, and then the majority opinion employ that same linkage rationale to determine that indeed the resentencing became harsher because of the linkage between the two separate sentences. The majority cannot logically say that the first five-to-fifteen-year robbery sentence was meaningless because it was linked to the murder death sentence, and then say that the five-to-fifteen-year consecutive robbery sentence is harsher because it is linked to the murder life imprisonment sentence.
I respectfully dissent.
. The first five-to-fifteen-year sentence was never denominated as either “concurrent” or “consecutive” by the trial judge at sentencing. He would have sounded somewhat foolish if he had imposed a death sentence, and then a concurrent five-to-fifteen-year sentence for the other crime. He would have sounded even more bizarre if he had followed the death sentence by a command to the prisoner to serve five to fifteen years consecutive to the execution of the death sentence.
This illustrates the very practical point that, where a death sentence is involved, sentences for all other crimes will normally not be specified as either concurrent or consecutive, and thus under the rule be deemed concurrent. If the death sentence is voided and life imprisonment imposed, then under the majority’s opinion here it would always be impossible to make any of the other sentences consecutive.
.“THE COURT: It is the judgment of this Court that you, Joseph C. Frady, by virtue of the commutation of sentence granted by the United States Court of Appeals for the District of Columbia, on Count 1 be imprisoned in a place of confinement to be designated by the Attorney General of the United States or his authorized representative for life under the provisions of Title 22, Section 2404, D.C. Code, 1961 Edition, 1965 Supplement;
That on Count 3, you be imprisoned for a term of not less than five years and not more than 15 years, the sentence under Count 3 to *390run consecutively to the sentence imposed under Count 1.”
Tr. June 18, 1965, 8-9.