dissenting:
I dissent from the decision reached by Judges Sloviter and Becker1 in United States v. Camarata, 828 F.2d 974 (3d Cir.1987), because I do not believe that a district court possesses the statutory authority to revoke a defendant’s probation for events which have occurred after the defendant has begun his term of incarceration and prior to the commencement of his probationary term. Unlike my colleagues, I believe the Supreme Court decisions of United States v. Murray, 275 U.S. 347, 48 S.Ct. 146, 72 L.Ed. 309 (1928), and Affronti v. United States, 350 U.S. 79, 76 S.Ct. 171, 100 L.Ed. 62 (1955), continue to control our decision here.
The principles announced in Murray and Affronti regarding the conflict of executive and judicial power are as vital now as they were thirty years ago. Accordingly, in light of these dominant precedents, this court’s decision in United States v. Veatch, 792 F.2d 48 (3d Cir.), cert. denied, — U.S. -, 107 S.Ct. 407, 93 L.Ed.2d 359 (1986), upon which my colleagues rest their decision, cannot be read to apply to other than the peculiar facts of that case, and cannot control the outcome of this case.
I would therefore hold, contrary to Judges Sloviter and Becker, that a district court does not have the authority to revoke a prisoner’s probation because of an offense committed during the prison term of his sentence while the prisoner was in the custody of the executive branch, and prior in time to the commencement of the prisoner’s probationary term.
I.
A.
In United States v. Murray, 275 U.S. 347, 48 S.Ct. 146, 72 L.Ed. 309 (1928), the Supreme Court held that a district court did not have the power to shorten or suspend a prisoner’s sentence of incarceration after the prisoner had begun serving his sentence. Murray was the result of the consolidation of two appeals by the United States of grants of probation. In each of the cases, a district court had granted probation to a defendant after the defendant had been delivered into the custody of the executive branch to serve a sentence of imprisonment.
The Supreme Court, interpreting basically the same statutory language applicable here, observed that to read the probation statute as allowing a district court to grant probation at any time during the prisoner’s sentence would “make applicable to the same crimes at the same time three different methods of mitigation,” id. at 356, 48 S.Ct. at 149, — executive clemency, parole, and probation. The court found it “unlikely” that the Congress intended such a result, and cited Ex parte Lange, 18 Wall. 163, 21 L.Ed. 872 (1874), for the principle that the beginning of the service of the sentence in a criminal case ends the power of the court to change it. Based on this view, the Supreme Court concluded that “[a] more reasonable construction [of the probation statute] is to reconcile the provisions for probation, parole, and executive clemency, making them as little of a repetition as we can.” Id., 275 U.S. at 357, 48 S.Ct. at 149.
Affronti v. United States, 350 U.S. 79, 76 S.Ct. 171, 100 L.Ed. 62 (1955), further delineated the temporal limits of a district court’s probationary authority. The prisoner in Affronti, while serving the first of a series of consecutive sentences, sought by motion to suspend his remaining sentences. He argued that a district court has *984probationary power over unexecuted sentences. The Supreme Court rejected that argument, stating that the “Murray opinion points out that it is unlikely that Congress would have found it wise to make probation apply in such a way as to unnecessarily overlap the parole and executive-clemency provisions of the law.” Id. at 83, 76 S.Ct. at 173. In light of its decision in Murray, the Supreme Court again interpreted the statute in such a manner as to avoid interference with the parole and clemency powers of the executive branch, and held that “the probationary power ceases with respect to all of the sentences composing a single cumulative sentence immediately upon imprisonment for any part of the cumulative sentence.” Id.
Thirty years later, in United States v. Veatch, 792 F.2d 48 (3d Cir.), cert. denied, — U.S. -, 107 S.Ct. 407, 93 L.Ed.2d 359 (1986), this court was faced with a new variation on the old question of the limit of a district court’s probationary authority. The facts of Veatch were simple. Veatch had been sentenced to a six-month term of imprisonment to be followed by a five-year probationary term. While free on bond pending appeal, Veatch committed a felony. The district court revoked its previously imposed probationary sentence, on the grounds of Veatch’s state felony conviction, and sentenced Veatch to a longer custodial sentence.
This court, while it briefly discussed Affronti and Murray, spent much of its effort in Veatch examining the analyses of other Courts of Appeals in similar cases. In Veatch, we cited with favor the approach of United States v. Ross, 503 F.2d 940 (5th Cir.1974), which held that a district court can revoke probation where the defendant committed an unrelated later offense before his sentence began. We rejected the reasoning of United States v. Dick, 773 F.2d 937 (7th Cir.1985), which hewed to a stricter interpretation of the probation statute.2
Reading the statute broadly, we then held that “a district court may revoke probation if a defendant violates the conditions of probation in the period between the date of sentencing and date of incarceration.” Veatch, 792 F.2d at 52. It is obvious from examining the opinion in Veatch that we intended only to address the narrow issue of the authority to revoke probation on the basis of acts committed pending appeal. We did not propose that our action trench upon or cause tension with the executive branch. We said:
To read the statute as narrowly as did Dick would frustrate the intent of the Act and would deprive the courts of the authority to revoke probation when an offender has committed another criminal act while the original conviction is on appeal. The need for the power to revoke is perhaps more acute when the additional offense occurs so soon after imposition of a sentence than it would be when the infraction occurs years later. In addition, during the period when the defendant is at liberty pending appeal, the concerns that influenced Affronti do not exist. In that interval, there is no conflict between the court’s authority and the executive’s responsibility for confinement or clemency.
Id. (emphasis added).
Veatch unequivocally concluded that the district court’s probationary power exists in the period after sentencing and before appeal and incarceration. Equally clear to my eyes is that Veatch did not intend to include in its holding those situations giving rise to potential conflicts between the judiciary and the executive regarding the punishment of prisoners. The case before us today involves precisely that situation. It involves a period of time during which *985Camarata was in the custody of the executive branch, rather than under the authority of the sentencing court, because Camarata had already begun, and was still subject to, a term of incarceration.3
In the Fifth Circuit’s decision in United States v. Wright, 744 F.2d 1127 (5th Cir.1984), a distinction is drawn between the period of time preceding incarceration and the period of time following incarceration but preceding the commencement of the probationary period. In Wright, the Fifth Circuit addressed the specific question of whether “the district court was authorized to revoke the [defendant’s] probation for a violation of a probation condition that had occurred before the probationary period had commenced.” Id. at 1128. Wright involved a federal defendant who had been sentenced on two count Wright was sentenced on the first count to a term of incarceration, and his sentence on the second count was one of probation. While on parole from prison on the first count, Wright committed a state crime. The district court found that Wright had violated one of the conditions of his probation and revoked his probation on the second count.
On review, the Fifth Circuit held that the district court had no authority to revoke Wright’s sentence of probation on the second count for a violation that occurred before his prison term had ended and his probationary sentence had begun. To the contrary, the court stated, while a violation of a parole condition may be grounds for revoking a defendant’s parole, it is not grounds for revoking his probation on the second sentence, which has yet to commence.
Wright was decided ten years after the same circuit decided United States v. Ross, 503 F.2d 940 (5th Cir.1974). In Ross, the Fifth Circuit had held that a district court did not abuse its discretion when it revoked a defendant’s probation for a crime committed before the beginning of his sentence. In Wright, however, the Fifth Circuit noted that Ross created only a limited exception to the wording of the probation statute, an exception which encompassed only those events occurring prior to the commencement of the incarceration sentence. In reaching its holding, the court said:
[u]nder the rationale of Affronti, therefore, the district court was without power, once the defendant commenced service of the first of cumulative sentences, to grant or to revoke probation as to a consecutive sentence, even though it had not yet commenced____ Save for the power under Fed.R.Crim.P. 35 of a district court to modify a sentence within 120 days after it is imposed or affirmed on appeal, the sentencing judge’s power to modify the sentence ends after it is imposed and the prisoner commences service under it. United States v. Addonizio, 442 U.S. 178, 189 & n. 16 [99 S.Ct. 2235, 2242 & n. 16]....
Wright, 744 F.2d at 1131 (emphasis added). Thus Wright clarified the scope of Ross, explaining that Ross represented a limited exception to the wording of the probation statute and that the district court’s authority to modify a sentence by revoking probation ceased when the defendant began serving a sentence in prison and was within the custody of the executive branch.
I am persuaded by the reasoning of the Fifth Circuit in Wright, which logically and sensibly recognized that Ross’s deviation from established jurisprudence is at most a limited one. In light of the fact that Veatch followed Ross, and I am bound by Veatch, I too would hold that Veatch is only a limited and narrow exception to the terms of the probation statute. It is an exception which, because of Affronti and Murray, cannot be extended to the situation where a defendant has been incarcerated — a situation different from that confronted in Veatch — and has not yet begun *986his probationary term. In my opinion, Veatch’s reasoning permits no other result, as it contemplates no more than its particular facts allow. Moreover, the Veatch court was obviously reluctant to even create the Veatch exception to the probation statute, as it feared that even that exception might lead to conflict between the judicial and executive branches.
B.
Because I believe that Veatch was not intended to be read more broadly than its explicit holding, it is evident that our decision in this case is not controlled by Veatch. To the contrary, I think that Camarata’s case is a prime example of a situation where the judiciary and executive branches’ power to punish may come into conflict, and indeed have come into conflict if the decision announced by Judge Sloviter’s opinion here is sustained. Consequently, I think that Affronti, rather than Veatch, must dictate our decision.
Camarata’s case involved a revocation of probation based upon state crimes which Camarata committed after he had commenced serving his federal prison sentence. As Judge Sloviter’s opinion recites, Camarata had been sentenced to forty-eight months of federal custody followed by five years probation. After this court had affirmed his conviction, Camarata sought a reduction of sentence to time served. The district court released Camarata on bail on October 30, 1984 and thereafter, on January 27, 1985, reduced Camarata’s sentence to two years to be followed by three years probation. Camarata was ordered to serve the balance of his federal sentence (fourteen months) at the federal correctional institution at Allenwood, Pennsylvania, commencing June 1, 1985. In October 1985, while Camarata was incarcerated at Allenwood, he was indicted by the State of New Jersey for acts committed between January 1, 1985 and October 8, 1985. Camarata pled guilty to the New Jersey charges in July 1986 and received a probationary sentence. It was after his release from federal custody in mid-1986 that the probation authorities filed a petition to revoke his federal probation, using Camarata’s New Jersey conviction as the basis for the petition.4
Thus, the district court properly acknowledged that Camarata committed his crime before his term of probation had begun, but after his term of incarceration had commenced. However, the district court held that Veatch’s “broad” language would allow the revocation of the defendant’s probation at any time after sentencing before the probationary term commenced. To support this conclusion, the district court distinguished the situation in Affronti as one involving “conflicting” authority, while Camarata merely involved “overlapping” authority, a presumably more innocuous state of affairs.
Judge Sloviter has, in her opinion, adopted the same characterization of Camarata’s plight. She dismisses Affronti’s relevance to our case, because Affronti involved the granting of probation, as opposed to the revocation of probation. I cannot agree that the principles announced in Affronti distinguish between the power to increase punishment and the power to decrease punishment. Rather, as I read Affronti, its instruction controls every modification of a probationary term. Indeed, as I would hold here, the Fifth Circuit in Wright held that Affronti was a limitation on a sentencing court’s power to revoke probation. Moreover, in Veatch, this court read Affronti as a restraint on a district court’s power to revoke probation: “Affronti restricted the trial judge’s discretion to revoke probation when it might conflict with the executive prerogatives.” *987Veatch, 792 F.2d at 50 (emphasis added). Accordingly, even Veatch interpreted Affronti as having a broader reach than Judge Sloviter acknowledges.
As I have observed above, Camarata’s case is the perfect example of such a conflict of authority. In this case, not only did the district court revoke Camarata’s probation, but the Bureau of Prisons transferred Camarata to another facility as a result of his second crime. The transfer resulted in Camarata’s loss of good time, and therefore increased the amount of time he will spend confined in prison. As a consequence of being subjected to the authority of both branches, even though Camarata’s offense was committed during the term of his prison sentence when only the executive branch should have had charge of his discipline, Camarata has suffered multiple punishments inflicted by two discrete and separate branches of the government.5
C.
The logical result of the decision reached by Judges Sloviter and Becker — and the government’s position — is that a sentencing court may revoke a yet-to-be-commenced probationary term for an event that occurs during the prison term that is being served. In the normal course of events, if a serious crime is committed by a prisoner, the prisoner is faced with separate criminal charges for that crime. If the crime is less serious or amounts only to an infraction of the prison’s rules, the prisoner would be subject to disciplinary proceedings within the prison system. There is no danger that a prisoner will not be punished for wrongdoing, if punishment is merited.
Under the statutory interpretation advanced in Judge Sloviter’s opinion, however, if, for example, a sentencing court learns of a. minor infraction committed while the prisoner was incarcerated, the sentencing court can revoke probation, even if the prison authorities have determined that the incident is too minor for punishment. The exercise of such a power raises again the concerns that Affronti expressed about a sentencing court’s familiarity with a prisoner, a concern that the Supreme Court addressed in terms of the “practicalities of sentencing”:
At the time of entering a judgment of conviction, the district judge is in the best position to fix the terms of a convict’s sentence. Thereafter, however, the judge becomes progressively less familiar with the considerations material to the adjustment of the punishment to fit the criminal. At the same'time, the officials of the Executive Branch responsible for these matters become progressively better qualified to make the proper adjustments. ... These considerations apply as much to a series of consecutive sentences as to a simple general sentence.
Affronti, 350 U.S. at 83-84 n. 13, 76 S.Ct. at 173-174 n. 13.
Thus, the sentencing court, depending upon the passage of time and the events that take place, may no longer be familiar with a prisoner’s situation when he is in the custody of the executive branch. It is therefore not in the same position to take appropriate action as it was at the time of sentencing. It is in this area that the prerogatives of the judicial and the executive branches come into serious conflict.
As I have indicated above, I am uncomfortable with the Camarata result reached by my colleagues because of the absence of clear statutory authority and because of the reasoning and unequivocal warnings of Affronti. I think that to expand a district court’s authority, so as to permit a district court to retain sentencing jurisdiction over a prisoner during the entire period of the prisoner’s pre-probation sentence, not only offends the statute but also disrupts the respective functions of the executive and judicial branches. Moreover, such authority would appear to run counter to the prescription of Federal Rule of Civil Procedure 35(b),6 which proscribes sentencing action *988by a district court after 120 days. See United States v. Addonizio, 442 U.S. 178, 189 n. 16, 99 S.Ct. 2235, 2242 n. 16, 60 L.Ed.2d 805 (1979) (prior to the adoption of Rule 35, the trial courts had no authority to change a criminal sentence after the defendant began to serve the sentence). It is obvious to me that the concerns leading to the 120-day limit under Rule 35(b) are similar to the concerns operative in the present case. In addition, the prospect of a district court increasing a defendant’s sentence years after it has been imposed implicates, in my judgment, the concerns which gave rise to Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957) (defendants should be protected from being subjected to more than one possible conviction for an alleged offense), and North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) (a defendant should be protected from imposition of multiple punishments for the same offense). But see United States v. DiFrancesco, 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980) (under special offender statute sentences may be increased after criminal sentence imposed).
The exception which led to Veatch was developed to deal with situations in which the defendant’s wrongdoing occurred soon after the defendant was sentenced, before the executive branch assumed responsibility for him. When a district court is misled by a defendant’s misrepresentations at sentencing, a later revocation of probation seems fair.
On the other hand, and as exemplified in the case before us, Camarata committed an offense long after he was sentenced and had commenced serving his term in prison. In Camarata’s case, the district court was not misled at his sentencing, but rather imposed a sentence deemed appropriate under all the circumstances at that time. It was only after the sentencing, that the offense giving rise to the district court’s revocation of Camarata’s probation occurred. Camarata was not on probation at the time of the offense. He therefore could not have violated a condition of probation.7 Yet, the district court has now exercised a purported authority to resentence Camarata in an attempt to correct what it now perceives as mistaken leniency. While I can empathize with the district judge’s motivation, I cannot agree that the district court judge had the power to act as he did.
Moreover, I think that my colleagues, in recognizing the validity of the district court’s revocation, have extended the court’s de facto probationary authority far beyond the five years clearly prescribed in the probation statute.8 If the defendant can have his probation revoked before it has even begun, then his probationary sentence would be in effect during, and run concurrently with, his prison term. Therefore, if the defendant were sentenced to twenty years in prison and a five year term of probation, his probationary term would be twenty-five years. This result is obviously not one contemplated by the current probation statute.9 Cf. United States v. *989Dick, 773 F.2d 937, 943 (7th Cir.1985) (“Were we to permit probation to be revoked for violations of probation that occurred after sentencing but before probation formally began, in effect we would be extending the probationary period past the maximum allowed by statute.”).
II.
For the foregoing reasons, I disagree with Judge Sloviter’s opinion announcing the judgment of the court. I would hold that the district court erred when it revoked Camarata’s probation for an event occurring after Camarata had begun his term of incarceration.
I therefore respectfully dissent.
Before GIBBONS, Chief Judge, and SEITZ, WEIS, HIGGINBOTHAM, SLOVITER, BECKER, STAPLETON, MANSMANN, GREENBERG, SCIRICA, and GARTH, Circuit Judges.. I do not find it necessary to address Judge Becker’s opinion because I do not believe the record supports the factual basis on which his opinion rests. Both Judge Sloviter and I point out that Camarata was indicted by the State of New Jersey for events which occurred during the period between January 1985 and October 1985. Camarata resumed his incarceration in federal prison effective June 1985.
. In United States v. Dick, 773 F.2d 937 (7th Cir.1985), the Seventh Circuit faced the exact issue that this court considered in Veatch: the defendant in Dick had committed a felony while on bail pending appeal. The Seventh Circuit chose to interpret strictly the language of the probation statute and held that "a district court cannot revoke the probation of a defendant for an event that occurred before the beginning of the probationary term,” and that ”[t]he power to revoke probation is available only for probation violations occurring during the probationary term." Id. at 944. As discussed infra, Veatch rejected this approach with regard to crimes committed while the defendant was on bail pending appeal.
. I agree with Judge Sloviter that the district court's authority to order bail pending resolution of a Federal Rule of Civil Procedure 35(b) motion was not challenged on appeal, and therefore is not before us as an issue. Nevertheless, Camarata was still subject to the authority of the executive branch because his prison term had not been concluded. Camarata’s situation differed from Veatch’s because Veatch had not been incarcerated subject to the authority of the executive branch at any time before his probation was revoked.
. It should be noted that Camarata's release from federal custody in January of 1985 was secured by the posting of bail pending his re-commitment to Allenwood in June of 1985, where he completed his term of imprisonment. Thus, from January to June of 1985 — a portion of the period encompassed within the New Jersey indictment — Camarata technically remained in the custody of the executive branch and was simply enjoying an interlude prior to returning to Allenwood to serve the fourteen month balance of his federal prison sentence. Accordingly, when the crimes charged in the New Jersey indictment took place. Camarata had yet to complete his term of federal imprisonment and was therefore under executive control.
. Camarata also suffered an additional punishment, as he was punished by the state court for the crime which provoked the district court’s revocation of probation.
. Federal Rule of Criminal Procedure 35(b) provides:
A motion to reduce a sentence may be made, or the court may reduce a sentence without *988motion, within 120 days after the sentence is imposed or probation is revoked, or within 120 days after receipt by the court of a mandate issued upon an affirmance of the judgment or dismissal of the appeal, or within 120 days after the entry of any order or judgment of the Supreme Court denying review of, or having the effect of upholding, a judgment of conviction or probation revocation. The court shall determine the motion within a reasonable time. Changing a sentence from a sentence of incarceration to a grant of probation shall constitute a permissible reduction of sentence under this subdivision.
. I question whether a defendant can violate a condition of probation while he is still in prison. My answer, for all of the reasons stated in this dissent, is obvious: he cannot.
. In relevant part, the probation statute provides: “The period of probation, together with any extension thereof, shall not exceed five years.” 18 U.S.C. § 3651.
. I note that, as mentioned in Judge Sloviter’s opinion, an amendment of the probation statute, enacted in the Comprehensive Crime Control Act of 1984, will go into effect on November 1, 1987. I do not find the language of the new statute as persuasive as Judge Sloviter apparently does. To the contrary, the statute has not yet been interpreted and any discussion in Veatch *989concerning the meaning of the amended statutory language constitutes nothing more than dictum.
Moreover, Judge Sloviter encounters the same problems of interpretation with the new statute as she does with the current statute. Indeed, her position would allow a de facto probationary period longer than the five-year period allowed under either the new statute or the current statute. See 18 U.S.C. § 3651 ("The period of probation ... shall not exceed five years"); see also 18 U.S.C. § 3561 (new statute provides for a maximum sentence of probation of not more than five years for a felony or misdemean- or). In any event, nothing can be found in the new statute which would appear to authorize a revocation of probation during the service of the defendant's prior prison term — or indeed the revocation of probation for violation for a probationary condition before the probationary term had even started.