The opinion
CLARK, Circuit Judge
(concurring in the result).
I concur in the refusal of the writ here because it seems to me that while the changed sentence of the defendant is definitely ambiguous, if not illegal, in the light of 18 U.S.C.A. § 710 , yet the remedy is not release, but application to the sentencing court for correction of the sentence. That course, it is now settled, is available even after the close of the term; and, just as on original sentence, an error should not have the effect of allowing the prisoner to go free, but should be corrected. Garrison v. Reeves, 8 Cir., 116 F.2d 978 , quoting Bryant v. United States, 8 Cir., 214 F. 51, 53 ; cf. Waldron v. United States, 6 Cir., 146 F.2d 145 ; Williams v. United States, 5 Cir., 148 F.2d 923 ; Miller v. United States, 2 Cir., 147 F.2d 372 .
I cannot agree, however, that the new sentence, as formally inscribed, was within the discretion of the trial court. The substance, as well as the obviously intended result, of the change was a single, overall sentence of a certain number of months, somewhat less than the original term, but whose exact duration we can only guess. That substance should control here, not the curious form in which it was embodied. United States v. Weiss, 2 Cir., 150 F.2d 17 . Indeed, were we to look at form alone, I am convinced we must hold the attempted second sentence invalid under United States v. Benz, 282 U.S. 304 , 51 S.Ct. 113 , 75 L.Ed. 354 , as taking away the very real and valuable privilege of shortly applying for parole. (That the application might not have been granted does not show the lack of value to the privilege; in truth it was the necessary first step and therefore condition of a parole.) But it is unreal to think of two sentences here for what was only a single confinement. Therefore since it operated to confine the prisoner for more than a year and less than three years, the allowance of six days per month was mandatory for a prisoner “whose record of conduct shows that he has faithfully observed all the rules and has not been subjected to punishment.” 18 U.S.C.A. § 710 . It is to be noted that the statute operates in terms of actual confinement, not of sentence imposed, and that the sentencing judge has nothing to do with its operation beyond, of course, the fixing of the original sentence. Its purpose is obviously to hold out earnest of reward to the prisoner and to afford a measure of control and discipline to the jailer. These objectives are frustrated by any rule that the judge may substitute a fixed term sentence (not to exceed six months) whenever a longer sentence has been partially served. *1016 For that final period, incentive to the prisoner and control to the jailer are denied, contrary to what seem to me to be the specific terms and the intent of the statute. It is not an answer to say that the judge was thinking in terms of the net further period he wished the defendant to serve; the statute does not permit of that, and the difference is more than formal. Moreover, it is sheer guesswork to say that the judge was doing the requisite mathematics in his head at the time of resentence to arrive at a supposed net sentence from a higher gross in his mind; it is more probable that he gave the matter of good time allowance no more thought than when he entered the original sentence. But since we cannot know from the written word what he was thinking and since he cannot deny the statutory allowance to a part, any more than to the whole, of an entire sentence, I think the matter should be brought back to him for elucidation and correction.