concurring, with SEYMOUR, Circuit Judge, joining in this concurring opinion:
While I agree with the result in this case, I believe that a different analytical approach is dictated. In these days of choked calendars, we ought to give primary consideration to procedural solutions that will minimize potential points of litigation, avoiding like the plague a multiplication of rules whenever a sensible overarching rule will achieve at least equally just and manageable results. The proliferation of opinions in the cases we have considered en banc to address sentencing problems at least presumptively suggests that we settled (or at least proceeded) on grounds that are more likely to encourage litigation than inhibit it. It is not that I believe any of the proposed analyses are without support in precedent or logic. It only seems shortsighted and unnecessary to continue a tangled web of standards for dealing with cases involving disputes as to which sentence is the legal one, binding on both the defendant and the Government.
Both the majority opinion in this case and Judge Logan’s opinions here and in United States v. Earley, 816 F.2d 1428, persist in requiring a threshold determination of the nature of the sentencing uncertainty, applying different rules of resolution depending upon whether the uncertainty arises from a “conflict” between the oral pronouncement and the formal judgment and commitment, an “ambiguity” in the oral pronouncement, or “judicial silence” in the oral pronouncement. Other scenarios giving rise to sentencing uncertainties, such as alleged error in the transcription of the oral pronouncement or an alleged clerical error in the formal *1454judgment and commitment, are not addressed and will need to be individually litigated as they arise to determine the proper sentencing rule in those cases. The results of such a multifarious approach are no more logical or fair for all its complexities. The majority states: “If there is an ambiguity in the sentence, then such extrinsic evidence as the judgment and commitment order, the judge’s intentions, or the defendant’s understanding of what he believes the sentence to be, may be consulted.” Majority opinion at 9. No hint is given as to which of these extraneous aides should control if they conflict among themselves. Similarly, silence itself poses problems not fully resolved by either the majority’s opinion or Earley. The majority opinion noticeably omits silence from its list of ambiguities, see majority opinion at 1453 n. 6, while Earley only deals with silence as to concurrency of sentences. Thus this court gives no clue as to what should govern the analysis in the case of silence regarding something other than concurrency. For example, it is unclear what rule should apply if the court fails to orally sentence a defendant on one count of a multi-count indictment when the defendant is found guilty of all counts, yet the formal judgment and commitment sentences him on that count.
Baca v. United States, 383 F.2d 154, 157 (10th Cir.1967), cert. denied, 390 U.S. 929, 88 S.Ct. 868, 19 L.Ed.2d 994 (1968), illustrates the many difficulties which inhere in the fractured approach to sentencing uncertainties perpetuated by the court today. The case distinguishes an actual “conflict” between oral pronouncement and formal judgment and commitment, in which case the oral pronouncement controls, from mere “ambiguity” in the oral pronouncement, where it is suddenly appropriate to consult the formal judgment to clarify the judge’s “intention.” Judge Logan’s concurrence in the present case adopts this distinction, addressing the situation in which there is “no actual conflict ... but rather just ambiguous wording____” Concurring opinion at 1459. The problems in creating such hairsplitting characterizations as “conflict” and “ambiguity,” with the results turning on the attendant label, should be obvious. Moreover, in the case of an “ambiguity,” Baca fails to even consider the possibility that the formal judgment itself may not accurately reflect the judge’s “intent,” if implementing his intent is even the proper goal; it is a goal rejected by the majority today.
I could lengthen this list tenfold, describing all the possible sources of sentencing uncertainty that are not covered by any of the numerous sentencing rules governing resolution of such questions, but I think I have sufficiently made my point. It does not seem to me that it should matter whether the sentencing uncertainty arises from a set of facts characterized as “ambiguous,” “contradictory,” “judicial silence,” or any other label that may have to be created to cover a situation not yet confronted by the court. It is time to cut through this analytical maze we have created by adopting such artificial distinctions and then applying a different rule to each. So long as we persist in beginning our analysis with a search for which of these characterizations applies to the particular case, we invite litigation and endless debate.
There exists in the law an old and respected principle that would readily push courts and potential litigants beyond this characterization quagmire to the only real issue that should ever arise in these cases: whether there is any legitimate basis for a claim that the scope of the sentence administered by the court is in doubt. Justice Frankfurter reiterated that principle, so well settled that it has been treated as an adage, in his opinion for the Court in Bell v. United States, 349 U.S. 81, 83, 75 S.Ct. 620, 622, 99 L.Ed. 905 (1955): “It may fairly be said to be a presupposition of our law to resolve doubts in the enforcement of a penal code against the imposition of a harsher punishment.”
This rule is rooted in many of the same considerations as is the rule of lenity; which dictates that “ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity.” Liparota v. United States, 471 U.S. 419, 105 S.Ct. 2084, *14552089, 85 L.Ed.2d 434 (1985) (quoting Rewis v. United States, 401 U.S. 808, 812, 91 S.Ct. 1056, 1059, 28 L.Ed.2d 493 (1971)). While, strictly speaking, the rule of lenity has been applied primarily in resolving doubt about expression of legislative will defining crimes, it is not unprecedented to apply it in other areas, including the resolution of sentencing disputes. Our own circuit has previously stated: “Any reasonable doubt or ambiguity arising in connection with the true meaning and intent of the sentencing court will be resolved in favor of the defendant.” Subas v. Hudspeth, 122 F.2d 85, 86 (10th Cir.1941) (emphasis added). This sentiment is also echoed in many other circuits as well. See, e.g., United States v. Naas, 755 F.2d 1133, 1136 (5th Cir.1985) (presumption of concurrency “resolves any ambiguity in favor of the defendant”); United States v. Sanjurjo, 481 F.2d 638, 639 (2d Cir.1973) (“Ordinarily we might consider resolving [sentencing] ambiguities in favor of defendant____”); Gaddis v. United States, 280 F.2d 334, 336 (6th Cir.1960) (per curiam) (“Where there is any ambiguity, the prisoner is entitled to have the language in the pronouncement construed most favorable to him.”).
This very notion gave rise to the rule, based on lenity and confirmed again in Earley, that silence as to whether sentences should run consecutively with each other or with preexisting sentences results in a presumption of concurrency of sentences. I perceive no just reason not to fully cement this principle in all questions of sentencing uncertainty. Indeed, Subas did not involve the presumption of concurrency due to judicial silence. It involved an argument surrounding the judge’s choice of syntax in pronouncing sentence which could arguably be interpreted in either of two ways. The Tenth Circuit concluded that the defendant’s interpretation was “fanciful,” Subas, 122 F.2d at 86, but, had the court found a “reasonable doubt or ambiguity,” it would have applied the rule of sentencing lenity articulated therein and quoted above.
I fully endorse the concern that drives the court’s opinion in this case: the right of the defendant to be a participant in the awesome act of criminal judgment. That concern, however, is readily met by the rule I propose, as the defendant need not be present if a sentence is reduced. Cf. Fed.R.Crim.P. 43(c)(4).
Of course, the trial court can always ameliorate the chances of these cases arising by modest adherence to some standard practices designed to ensure that all bases are covered, such as assuring that the sentence intended was precisely pronounced and transcribed and that the written form of judgment conforms to that intent. Those few cases that do slip by would not create a threat to justice when the rule of lenity is applied. In almost all cases, a substantial sentence will be served. It is not a matter of convicted defendants escaping the punitive arm of the law. The dispute normally will be (as in this case) a quibble between a long and longer sentence.
Against these readily answered concerns, we should weigh the costs to the overburdened justice system of what amounts to ad hoc rulemaking for each peculiar fact situation. By extrapolating from core concepts of our criminal law, we can put an end to imagining all the fact patterns that our rules must address and directly examine whether the claim of uncertainty has anything more than fabricated substance to it. The threshold determination that uncertainty of some type exists must still be made, and, admittedly, there may be disagreement as to whether there is any true uncertainty. Normally, however, that determination can be made summarily on the record in those few cases that would reach litigation once prosecutors and defendants know that the rule of lenity is the standard by which claims of this type will be judged. Once uncertainty is determined, no matter what its character, its resolution should flow easily from the application of sentencing lenity. No classification need be done first.
While it may be argued that the rule of lenity is arbitrary and may result in outcomes not subjectively contemplated by the sentencing court, as the majority opinion in *1456this case reveals, the majority's rule produces an equally random result. It is just as likely that the written judgment will mistake the court’s subjective intent as it is that the orally pronounced or transcribed judgment will. Our purpose here is to find a balanced rule that will provide clear and just standards for settling these disputes.