concurring.
I join in the court’s conclusion that North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L,Ed.2d 656 (1969), requires that Whitley’s sentence must be vacated, but my reasoning differs from the majority’s analysis. I believe that 18 U.S.C. § 2113 creates a single offense of bank robbery with varying penalties tied to the existence of aggravating circumstances. In contrast, the majority characterizes the sections of the bank robbery statute as defining greater and lesser included offenses.
The difference in our views as to § 2113 is significant because Pearce would not apply if Whitley’s original plea had been to a lesser included offense and subsequently he had been convicted of a greater offense. The apprehension of vindictiveness, which is the object of Pearce’s prophylactic rule, cannot exist when the second sentence is imposed for an offense greater than that which was the basis of the original conviction. The complete explanation for the harsher penalty is obvious on the face of a judgment convicting the defendant of the greater crime. See United States ex rel. Williams v. McMann, 436 F.2d 103 (2d Cir.1970). Cf. United States v. Johnson, 537 F.2d 1170, 1174-75 (4th Cir.1976).
My belief that § 2113 creates a single offense, rather than a series of lesser and greater offenses, is based on Walters v. Harris, 460 F.2d 988, 994 (4th Cir.1972), where we held:
It was not the intent of Congress by the various sections of 18 U.S.C. § 2113 to create a number of distinct crimes for a single bank robbery .... Rather the various sections ‘create different maximum punishments for a single offense depending on whether aggravating circumstances exist.’
Furthermore, as the majority points out, Whitley’s actions during the robbery do not constitute the kind of conduct that would give rise to separate offenses under § 2113. See Crawford v. United States, 519 F.2d 347, 351-52 (4th Cir.1975).
Pearce is applicable because Whitley received a longer sentence than his original sentence after being reconvicted of the same offense. See United States v. Hawthorne, 532 F.2d 318, 322-25 (3d Cir.1976); United States v. Floyd, 519 F.2d 1031 (5th Cir.1975).