(dissenting).
I respectfully dissent from the majority's holding that the double jeopardy clause bars the imposition of an enhanced sentence by the district court upon the facts of this case. In my view, the Supreme Court’s holding in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), requires the contrary conclusion.
As the majority opinion points out, the Supreme Court’s holding in North Carolina v. Pearce that the double jeopardy clause places no restrictions upon the length of a sentence imposed upon reconviction, was based upon the fact that “ * * * the original conviction has, at the defendant’s behest, been wholly nullified and the slate wiped clean.” Id. at 721, 89 S.Ct. at 2078. Durbin has, at his own request, sought and obtained the vacation of his sentence. The slate, as to his sentence, has been “wiped clean,” and as a consequence the guarantee against double jeopardy does not bar the enhanced sentence.
The Court in North Carolina v. Pearce made clear that a key factor in its decision is that sentencing is meant to fit the offender and not merely the crime, and as such a sentencing judge must consider all known facts and circumstances as of the time he sentences. Id. at 723, 89 S.Ct. 2072. This same rationale is -applicable to resentencing where only the sentence has been vacated and the underlying conviction stands. Cf. Mitchell v. United States, 482 F.2d 289, 297 (5th Cir. 1973).
Because in my opinion the double jeopardy clause does not bar the enhanced sentence, and because I concur in the majority’s holding that the district court complied with the due process requirements applicable where a district court imposes an enhanced sentence following an appeal, North Carolina v. Pearce, supra, 395 U.S. at 726, 89 S.Ct. 2072, I would affirm the judgment of the district court.