The maximum fine in a general sentence may be determined by aggregating the maximum under each valid count. See e.g., Peoples v. United States, 412 F.2d 5, 6 (8th Cir. 1969); United States v. Woykovsky, 297 F.2d 179, 181 (7th Cir. 1961), cert. denied, 369 U.S. 867, 82 S.Ct. 1034, 8 L.Ed.2d 86 (1962); Robles v. United States, 279 F.2d 401, 407 (9th Cir. 1960), cert. denied, 365 U.S. 836, 81 S.Ct. 750, 5 L.Ed.2d 745 (1961). In United States v. Rose, 215 F.2d 617, 630 (3d Cir. 1954) we said "We are strongly of the opinion that it is highly desirable that the trial judge in imposing sentence on an indictment containing more than one count deal separately with each count."
Cases are legion recognizing that a single sentence imposed on a conviction of two or more counts for a term within the aggregate punishment allowed on all the counts is not illegal or excessive. United States v. Woykovsky, 297 F.2d 179, 181 (7th Cir. 1961), cert. denied, 369 U.S. 867, 82 S.Ct. 1034, 8 L.Ed.2d 86 (1962); Robles v. United States, 279 F.2d 401, 407 (9th Cir. 1960), cert. denied, 365 U.S. 836, 81 S.Ct. 750, 5 L.Ed.2d 745 (1961); Davis v. United States, 269 F.2d 357, 363 (6th Cir.), cert. denied, 361 U.S. 919, 80 S.Ct. 256, 4 L.Ed.2d 187 (1959); Call v. United States, 265 F.2d 167, 171 (4th Cir.), cert. denied sub nom. Pearson v. United States, 361 U.S. 815, 80 S.Ct. 54, 4 L.Ed.2d 62 (1959); Hart v. United States, 258 F.2d 559, 560 (4th Cir. 1958). See also Phillips v. United States, 212 F.2d 327, 335 (8th Cir. 1954).
This is one of the questions presented on the appeal. The defendant concedes that, in accordance with Rule 8(a), two or more offenses may be charged in the same indictment. That the defendant was properly charged on the three separate offenses in different counts of the same indictment is not open to question. Pummill v. United States, 297 F.2d 34, 35, C.A.8; United States v. Woykovsky, 297 F.2d 179, C.A.7, cert. denied 369 U.S. 867, 82 S.Ct. 1034, 8 L.Ed.2d 86; Terry v. United States, 310 F.2d 715, C.A.5. The defendant concludes through an erroneous interpretation of Rule 13 that consecutive sentences may not be given. The pertinent part of this rule provides: "The court may order two or more indictments * * * to be tried together if the offenses, * * * could have been joined in a single indictment * * *. The procedure shall be the same as if the prosecution were under such single indictment * * *.
Nor does Brown retain the right to allocution prior to a Rule 35 reduction. Jones v United States 381 F2d 351 (5th Cir. 1967); accord United States v. Woykovsky, 297 F.2d 179, 182 (7th Cir. 1961) and United States v. Smith, No. CR-03-81-B-W, 2007 WL 2937092, at *1 (D. Me. Oct. 05, 2007). Because neither's Brown's presence nor his speech was required for the Court to reduce his sentence pursuant to Rule 35, his motion is DENIED.
In addition, a sentence given on more than one count can exceed the maximum for one count as long as it does not exceed the maximum aggregate of all counts. U.S v. Woykovsky, 297 F.2d 179 (7th Cir. 1969). The sentence imposed in this case is well below the maximum aggregate for the two counts on which Ellis was convicted.
That appellant received assistance of counsel on appeal and obtained a reduction of his sentence, nothing less than what he could have achieved had he moved to correct his sentence under Rule 35, does not mean, as the government argues, that he was not entitled to allocute at the time of resentencing. Although the language of our opinion in appellant's direct appeal may suggest a ministerial act, the legal effect of our holding is that appellant must be resentenced and not merely that his original minimum sentence is to be reduced by three years.See United States v. McCray, 468 F.2d 446, 450 (10th Cir. 1972); Woykovsky v. United States, 297 F.2d 179, 182 (7th Cir. 1961), cert. denied, 369 U.S. 867, 82 S.Ct. 1034, 8 L.Ed.2d 86 (1962). Accordingly, we reverse and remand the case for resentencing at which appellant shall have the right to allocute and to have counsel present to argue in mitigation of sentence before a new sentence is imposed.