(dissenting) .
I regret disagreeing with the majority. However, my judgment is that this case should be remanded to the District Court for resentencing in accordance with Marano v. United States, 374 F.2d 583 (1st Cir. 1967). Because of its confidential nature, the presentenee report need not be revealed to counsel or made part of the record.1 But in fairness to the parties and to elucidate the appeal, the District Court should certainly state the grounds in the presentence report that caused the imposition of the greater sentence. Patton v. State of North Carolina, 256 F.Supp. 225, 235, 236 (W.D. N.C.1966; opinion by Circuit Judge Craven), affirmed, 381 F.2d 636 (4th Cir. 1967); Gainey v. Turner, 266 F. Supp. 95, 102 (E.D.N.C.1967). Since this record does not reveal the basis for the increased sentence, affirmance is unjustified.2 Even assuming the viability of Stroud v. United States, 251 U.S. 15, 40 S.Ct. 50, 64 L.Ed. 103,3 the record on retrial should affirmatively show that only permissible grounds motivated the increase in punishment. As the able trial judge observed, a sentence should not be imposed to punish a defendant for taking an appeal. Only exceptional circumstances warrant increasing a sentence upon retrial.4
In my view, this Circuit should no longer countenance the following sentence of the Allen charge as given here (33 F.R.D. at p. 611);
“If you should fail to agree on a verdict the case must be retried.”
The statement is untrue, for the Government may decide not to retry the case. Because of its misleading effect, the sentence should be replaced by one suggested by Judge Mathes, or its equivalent (27 F.R.D. at p. 102):
“If you should fail to agree on a verdict, the case is left open and undecided. Like all cases, it must be disposed of sometime.”
Defendant has not shown that the improper charge was sufficiently prejudicial to require reversal. No authority has been cited to support reversal on this ground. The District Judge was of course not at fault for employing the unfortunate sentence, for it was derived verbatim from instructions used throughout this Circuit since 1963. The defect should be rectified in future cases in which the Allen charge is given.
. Cf. § 2.3(a) (iii) of Appellate Review of Sentences (p. 42 of April 1967 Tentative Draft), American Bar Association Report on Minimum Standards for Criminal Justice, Institute of Judicial Administration.
. See United States v. Wiley, 278 F.2d 500, 504 (7th Cir. 1960).
. But cf. Patton v. State of North Carolina, 381 F.2d 636, 644-645 (4th Cir. 1967) ; People v. Henderson, 60 Cal.2d 482, 35 Cal.Rptr. 77, 386 P.2d 677, 686 (1963).
. See Marano v. United States, 374 F.2d 583, 585-586, note 3 (1st Cir. 1967); Patton v. State of North Carolina, 256 F.Supp. 225, 235 (W.D.N.C. 1966), affirmed 381 F.2d 636 (4th Cir. 1967).