concurring. I agree with that part of the majority opinion which orders the trial court to hold a new hearing for the resentencing of the defendant. I write separately to emphasize that North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969), imposes important constitutional constraints upon the scope of such a hearing.
Unless and until the United States Supreme Court decides to retreat from its holding in Pearce, we are bound to follow its mandate. To guard against the risk of retaliatory vindictiveness to punish a defendant’s exercise of his right to a retrial, and to avoid the problems of proof that inhere in a factual demonstration of improper motivation, Pearce adopts a prophylactic rule. That rule purposely limits the circumstances under which a defendant, on a new trial, can receive a sentence more severe than that which was imposed upon him during an earlier prosecution for the same crime. The majority opinion recognizes that Pearce requires the sentencing judge to place on the record his reasons for imposing the more severe sentence. The majority opinion acknowledges that Pearce confines constitutionally permissible reasons for a more severe sentence to “identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding.” North Carolina v. Pearce, supra, 726.
I am troubled, however, by the intimations in the majority opinion that Pearce might allow the sentencing judge in making an affirmative record to rely, in any way, on the fact that the defendant had committed *507an atrocious crime or that his retrial had compelled the victim and members of her family to testify. None of that constitutes "conduct on the part of the defendant occurring after the time of the original sentencing proceeding.” Nor do I believe that "a full trial after an earlier proceeding setting aside the original sentence can itself be a subsequent event under Pearce” unless, during the retrial, the defendant has demonstrably committed perjury. United States v. Grayson, 438 U.S. 41, 51, 98 S. Ct. 2610, 57 L. Ed. 2d 582 (1978), on which the majority relies, does not signal a retreat from Pearce, because Grayson did not involve a reprosecution but concerned only the propriety of an enhanced sentence in a single trial. Indeed, Grayson does not cite Pearce. I urge the trial judge, on resentencing, to bear in mind that Pearce limits his inquiry to a search for objective facts about identifiable conduct of the defendant subsequent to his original sentencing. See United States v. Gilliss, 645 F.2d 1269, 1283-84 (8th Cir. 1981); United States v. Tucker, 581 F.2d 602, 604-607 (7th Cir. 1978); United States v. Floyd, 519 F.2d 1031, 1033-35 (5th Cir. 1975).
Accordingly, I concur.