dissenting:
I concur in Chief Judge Winter’s conclusion in dissent that Whitley’s enhanced sentence offends the principles of North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). In addition to the concerns expressed in his dissenting opinion, I am troubled by an aspect of Whitley’s case which seems to have escaped notice.
In Part III of its opinion, the en banc court attempts to avoid what otherwise would be an obvious Pearce violation. It does so by overruling prior interpretations of 18 U.S.C. § 2113. The court, of course, is free to overrule earlier opinions, even, of course, an opinion which itself emanated from an en banc appeal. However, there is at least a reason to pause before overruling, for of necessity the whole judicial system proceeds on the basic assumption that decisions, even three-judge panel decisions, are customarily correct. Here we overrule not one, but two decisions and, as the thing is done, ourselves contribute directly to the commission of a manifest injustice.
At the time Whitley elected to attack his twenty year sentence, extant Fourth Circuit authority provided every assurance that a retrial on the original indictment would not carry the potential for additional punishment over and beyond the twenty years imposed following a guilty plea to 18 U.S.C. § 2113(d). Indeed, the conclusions reached by Chief Judge Winter in the original panel opinion, and by Judge Butzner in his concurrence, confirm that Whitley’s expectation was the only reasonable one. As matters have now turned out, however, the en banc majority essentially penalizes Whitley for not being smarter than both Chief Judge Winter and Judge Butzner. Rather than sanction Whitley for not being *335more perceptive of the law than the court itself, I would apply the rules adopted by the majority only prospectively.
In Judge Butzner’s ease, the matter is very simple. At the panel level, he felt bound by extant Fourth Circuit authority, which defined Whitley’s crime as a “single one,” with only differing degrees of enhanced punishment possible under the several subsections of 18 U.S.C. § 2113. According to Judge Butzner at the panel level, when Whitley was retried and convicted of violations of 18 U.S.C. § 2113(a), (b), (d) and (e), he was convicted of the “same offense” as that to which he previously had pled guilty. There being no intervening aggravating circumstances, Pearce prohibited enhanced punishment. See United States v. Whitley, 734 F.2d 994, 999 (4th Cir.1984) (Butzner, J., concurring).
In taking the “same offense” approach, Judge Butzner justifiably relied on prior Fourth Circuit holdings, particularly Walters v. Harris, 460 F.2d 988 (4th Cir.1972), cert. denied sub nom. Wren v. United States, 409 U.S. 1129, 93 S.Ct. 947, 35 L.Ed.2d 262 (1973) (“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____’ ”). The later case of Crawford v. United States, 519 F.2d 347 (4th Cir.1975) in no way reaches a contrary conclusion, although there is some ambiguous language which might arguably unsettle the holding of Harris. The result in Crawford, however, did not turn on whether the statute defined lesser included offenses because, on the particular facts presented, Crawford’s § 2113(e) kidnapping offense was distinct and separate from the bank robbery offense. Thus, at most, the seemingly unsettling language was dicta.
Judge Winter took a different and more complicated route since he thought each subsection of 18 U.S.C. § 2113 specified lesser included offenses, each of which was a separate crime. See 734 F.2d at 997-98 n. 2. Nevertheless, he readily acknowledged that where, as here, all the crimes charged grew out of the same set of events, for punishment purposes the concept of lesser included offenses was applicable to Whitley. Hence, Whitley’s separate offenses under 18 U.S.C. § 2113, involving the same concatenation of circumstances, were linked to one another in such a way that, if he were convicted of all crimes charged, sentencing, in effect, still could not exceed the maximum punishment for the most serious of the offenses/
Since the earlier plea bargain of guilty to 18 U.S.C. § 2113(d) had set the maximum at twenty-five years (subsequently reduced to twenty years), Judge Winter was persuaded that North Carolina v. Pearce, in the absence of aggravating circumstances, precluded the enhanced sentence meted out by Judge Potter of fifty years. Judge Winter thus extended application of North Carolina v. Pearce to a situation analogous to the one actually presented in that case. However, his view on the crucial issue confronting us is that, absent subsequent aggravation, Whitley’s sentence could not be enhanced beyond twenty years, regardless of how many subsections under the 18 U.S.C. § 2113 umbrella he might be convicted of the second time around. Every indication suggests that Judge Winter has consistently adhered to that view since a time even before the date when Whitley was called on to decide whether to seek to vacate the twenty year sentence.
In Whitley’s case there have been no such aggravating circumstances. Neither Judge Butzner nor anyone else has suggested otherwise. Obviously if there were none at a later date, there were none at any earlier time. Whitley was in the best position of anyone to know that fact. Hence he should have been able safely to proceed on the assumption that both Judge Winter and Judge Butzner, though for different reasons, nevertheless would, sitting on three judge panels, certainly have agreed that Whitley could not be resentenced to more than twenty years. That, *336indeed, is just what happened when the panel determination in Whitley’s case was made.
At the en banc level, Whitley was in for a rude awakening. Although Judge Butzner was evidently not satisfied with the law he clearly recognized to be in existence, still, he steadfastly applied the single offense approach of Walters and Crawford when the question arose at the customary panel level. Only when the appeal reached the en banc level, well after the time when Whitley had to make his crucial decision, did Judge Butzner have the right to express a preference for a change in the law. The point remains, however, that, because of the change in the law, Whitley was caught in the switches. Had he known that, while the guilty plea and the twenty year sentence could be vacated because of ineffective assistance of counsel, he still upon retrial might get life or fifty years, he might very well have refrained from pursuing relief under 28 U.S.C. § 2255. In plain language, he has been led up the garden path. By allowing Whitley to vacate his plea, we have trapped him in a labyrinth formed by a retrospective change in the law.1
For those reasons, I cannot follow the lead of the en banc majority. While I agree with the conclusion that 18 U.S.C. § 2113 spells , out several lesser included offenses, not simply a single offense with enhanced punishments, I cannot disregard the strictures of Pearce. Furthermore, even in the absence of the holding in Pearce, had Congress retrospectively changed the law by redefining Whitley’s offense to his detriment, its action quickly would be struck down as an ex post facto law. Due process considerations similarly operate to restrain the court from reaching the same result through a new construction of an existing statute. See Bouie v. City of Columbia, 378 U.S. 347, 353-54, 84 S.Ct. 1697,1702-3, 12 L.Ed.2d 894 (1964); Marks v. United States, 430 U.S. 188, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977); United States v. Potts, 528 F.2d 883 (9th Cir.1975).2
Accordingly, I dissent.
. A man in Whitley’s position is concerned about result, the bottom line, not about legal niceties which may have been, indeed probably were,-beyond his comprehension. The important thing is that, at the time Whitley had to decide whether to seek vacation of his improperly imposed twenty year sentence, extant authority (Harris and Crawford) suggested, and two giants on the bench fully agreed, with no judge of the court displaying a contrary point of view, that, according to the law as it then stood, twenty years was the maximum possible in case of any resentencing.
. Suppose the law had all along been otherwise, clearly holding that it was entirely proper to allow an enhanced sentence upon the vacation of a finding of guilt and retrial under 18 U.S.C. § 2113. With a great degree of probability we may conjecture that Whitley would never have filed his 28 U.S.C. § 2255 proceeding. At least, he might not have done so without first seeking to raise another possible instance of ineffective assistance of counsel on the part of the lawyer who, in a manner held by the Fourth Circuit to be ineffective, mistakenly had advised him that he should plead guilty to avoid the possible imposition of a death penalty. The plea arranged by that lawyer was to 18 U.S.C. § 2113(d) (bank robbery, for which the maximum sentence was twenty-five years). If the plea had been to 18 U.S.C. § 2113(e) (kidnapping, for which a life sentence was possible), the enhancement of the twenty year sentence ultimately imposed the first time ’round would not have been possible because in that instance Whitley would have been convicted of the identical offense, and Pearce would preclude increase in the sentence beyond twenty years.
To the prosecutor, § 2113(d) or (e) would have made no difference. He expected to put the case finally to bed. If he held out for (d) simply to dangle a great sword over Whitley’s head to discourage him from initiating a proceeding of any kind, including one to remedy the plain ineffective assistance of counsel which in fact occurred, the violation of his rights under the rationale of Pearce would be evident.
Of course, the trial judge need not have accepted a plea to § 2113(e) conditioned on a twenty-five year cap on sentencing. See Fed.R. Crim.P. 11. Still, the district judge, cognizant of all the facts, was willing to sentence to twenty-five years, and later to reduce the sentence to twenty years. Perhaps counsel had a duty to explore the possibility of obtaining agreement to a § 2113(e) plea, with a twenty-five year cap, and failed to do so.
However, we do not need to unravel that tangled skein inasmuch as it was patent, as of the time Whitley took his decision, that proceeding with the § 2255 motion did not present a risk of an enhanced sentence over the twenty year imposition already in existence.