concurring in part and dissenting in part:
While I agree that there is no merit in Whitley’s appeal from the district court’s denial of the motion to suppress, I remain of the view that his sentence should be vacated and his ease returned to the district court for resentencing under the restriction that a sentence more severe than twenty years may be imposed only if the sentencing judge discerns and articulates a reason adequate under Pearce to justify harsher treatment. To this extent, I respectfully dissent.
There is much in the majority opinion with which I agree. I have no doubt that Pearce and the line of cases it has spawned protect a defendant against an apprehension of vindictiveness in the imposition of sentence on retrial, as well as actual vindictiveness in the imposition of that sentence. I agree also that in most circumstances the provisions of 18 U.S.C. § 2113(a), (b), (d), and (e) create greater and lesser-included offenses. But I do not think that the proper outcome of this case depends upon whether that statutory language creates a single offense with different maximum punishments depending upon whether aggravating circumstances exist or whether it creates simply greater and lesser-included offenses. This case turns on its special facts.
On Whitley’s initial guilty plea to the charge that he violated 18 U.S.C. § 2113(d), the first sentencing judge was authorized to impose a maximum prison sentence of twenty-five years. That is the sentence he first imposed. But despite having learned that Whitley put in jeopardy the life of a female teller by the use of a gun and kidnapped her, although only briefly, in the course of committing the bank robbery, the original sentencing judge later reduced that sentence to twenty years. Thus there was a judicial determination on all of the facts that twenty years was an appropriate sentence for this heinous crime with all of its sordid details.
When on retrial — his plea of guilty having been stricken — Whitley was found guilty of violating 18 U.S.C. § 2113(a), (b), (d), and (e), the second district judge correctly treated the offenses under § 2113(a), (b), and (d) as having merged into the offense under § 2113(e). But the second district judge, citing no fact not known to the first district judge to justify his sentence, *334imposed a sentence of fifty years. The second district judge did disclaim actual vindictiveness on his part, and I do not dispute the truthfulness of his statement. Yet the fact remains that unless he can articulate a reason for a two and one-half times increase in the initial sentence, I can only conclude that the sentence he imposed would lead Whitley or any other reasonable defendant similarly placed to be apprehensive that vindictiveness played a part in the severity of the sentence imposed on him. It follows, to my mind, that the holding of Pearce and subsequent cases has been offended unless on remand the second sentencing judge can identify and articulate justification for his action aside from the fact that Whitley was successful in his collateral attack on his initial plea.
Having stated what this case is, I will also state what it is not. This is not a case where the first district judge imposed the maximum sentence of incarceration upon a defendant’s guilty plea to a lesser-included offense. Had the first sentencing judge, having heard all of the details of the crime, concluded that the maximum period of incarceration for that offense been justified, I would have no doubt that upon retrial and conviction of a greater-included offense, the imposition of a more severe sentence would have been unexceptionable short of evidence of actual vindictiveness. I would hold that ordinarily whenever a conviction on a lesser-included offense is set aside, followed by a conviction of a more aggravated offense, a more severe sentence may be imposed. It is only here, where the sentence of incarceration imposed on the first conviction is less than the maximum which the law permits for that offense and the less severe sentence is imposed by the sentencing judge with full knowledge of the facts which, if proved, would result in conviction of the more aggravated offense, that the Pearce rule comes into play.
For these reasons as well as those set out more fully in the majority panel opinion, United States v. Whitley, 734 F.2d 994 (4 Cir.1984), I would vacate the sentence and return Whitley to the district court for resentencing within the constraints of Pearce.
Judge MURNAGHAN, Judge SPROUSE, and Judge ERVIN authorize me to say that they join in this separate opinion.