The district court ruled that Clarence J. Sutton, a habeas petitioner who was convicted under Maryland law of common law assault, was entitled to a writ of habeas corpus to the extent that the fifteen-year sentence imposed on him exceeded the *610maximum penalty of ten years for the least aggravated form of statutory assault of which he might be found guilty, although no Maryland statutory offense was charged. The State of Maryland appeals. We affirm.
I.
Clarence Sutton was convicted of common law assault under an indictment which charged him only with that offense. The evidence at trial established that Sutton had forced his victim into a car, stabbed him twice in the neck and three times in the chest, and then dragged him out of the car, leaving him abandoned in a street gutter. Under Maryland law there is no prescribed maximum punishment for common law assault. See Simms v. State, 288 Md. 712, 714, 421 A.2d 957, 958 (1980). The only restriction on the sentence which may be imposed is the Eighth Amendment as made applicable to the states by the Fourteenth Amendment, and its counterpart in the Maryland Declaration of Rights, Id. Based upon the facts of the case and Sutton’s prior criminal record, including convictions for robbery, theft and three charges of assault, he was sentenced to fifteen-years imprisonment.
Maryland has refined the common law of assault by creating the statutory crimes of assault with intent to rob, assault with intent to murder, and assault with intent to rape or to commit certain sexual offenses. The maximum punishment for these crimes is ten years, thirty years, and fifteen years, respectively. 3A Ann.Code of Md., Art. 27, § 12. In addition there is the statutory crime of assault with intent to maim, disfigure or disable or to prevent lawful apprehension which carries a maximum penalty of ten years. 3A Ann.Code of Md., Art. 27, § 386. It is the law of Maryland that the common law crime of assault is a lesser included offense in the various statutory crimes of aggravated assault. See Johnson v. State, 310 Md. 681, 531 A.2d 675 (1987); Simms v. State, supra; Walker v. State, 53 Md.App. 171, 452 A.2d 1234 (1982), cert. denied, 296 Md. 63 (1983).
After Sutton’s conviction, he attacked its validity by direct appeal and by post-conviction proceedings. He also attacked the validity of his sentence by post-conviction proceedings. We need not recite the history of these efforts because Maryland does not dispute that Sutton has exhausted all available remedies without success and our review of those proceedings persuades us that exhaustion has occurred. We therefore are brought to decide whether the sentence imposed on Sutton offends the Eighth Amendment’s proscription of cruel and unusual punishment.
In a considered and carefully written opinion, the district court concluded that the Eighth Amendment had been violated to the extent that Sutton’s sentence exceeded ten years. Sutton v. State, 681 F.Supp. 291 (D.Md.1988). Its reasoning, succinctly stated, was that the concept of proportionality embodied in the Eighth Amendment is violated when the State seeks to punish a conviction for the lesser offense of common law assault more severely than a conviction of the least aggravated statutory assault for which he could have been prosecuted and convicted.
The district court relied heavily on our decision in Roberts v. Collins, 544 F.2d 168 (4 Cir.1976), cert. denied, 430 U.S. 973, 97 S.Ct. 1663, 52 L.Ed.2d 368 (1977), and subsequently decided Supreme Court cases, principally Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983). It also found persuasive Heathe v. State, 257 Ind. 345, 274 N.E.2d 697 (1971), in which the Supreme Court of Indiana held that the sentence for a lesser included offense may not, under the Eighth Amendment and Indiana’s constitution, exceed that provided for a greater offense, even if the greater offense is not charged. Accord, Application of Cannon, 203 Or. 629, 281 P.2d 233 (1955). It found no permissible basis for distinguishing, as Maryland courts do, between cases in which the defendant is charged with both a statutory assault and common law (“simple”) assault and cases in which only the common law offense is charged. See e.g., Simms v. State, supra; Walker v. State, supra.
*611II.
Before us, Maryland contends that the issue we must decide is whether “a fifteen-year sentence for common law assault [is] cruel and unusual punishment in violation of the Eighth Amendment ... where the defendant ordered the victim into his car at knifepoint, stabbed him five times about the head and chest, then dragged him out of the car and abandoned him?” If the circumstances of the crime were the sole test of proportionality, the case would not warrant argument because we would readily agree that the sentence was not disproportionate to the gravity of the offense. In that circumstance the sentence would not appear unduly harsh; it would not be cruel and unusual.
However, Solem v. Helm, supra, teaches that the principle of proportionality embodied in the Eighth Amendment is not tested solely by the gravity of the offense. Rather, it holds that
a court’s proportionality analysis under the Eighth Amendment should be guided by objective criteria, including (i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions.
462 U.S. at 292, 103 S.Ct. at 3010. Significantly, with respect to the comparison of sentences imposed on other criminals in the same jurisdiction, the Court said, “[i]f more serious crimes are subject to the same penalty, or to less serious penalties, that is some indication that the punishment at issue may be excessive.” Id. at 291, 103 S.Ct. at 3010. This statement should also be read in conjunction with the Court’s discussion of the application of the factors to specific cases. First, the Court discussed the ability of courts to judge the gravity of an offense, and it recognized that there are widely shared views as to the relative seriousness of crimes. It then added:
There are other accepted principles that courts may apply in measuring the harm caused or threatened to the victim or society. The absolute magnitude of the crime may be relevant.... Few would dispute that a lesser included offense should not be punished more severely than the greater offense. Thus, a court is justified in viewing assault with intent to murder as more serious than simple assault, [citing, inter alia, Roberts v. Collins, supra]
463 U.S. at 293, 103 S.Ct. at 3011.1
In Roberts v. Collins, supra, the accused, indicted under Maryland law for assault with intent to murder and for simple common law assault, pleaded guilty to the common law assault charge. We held that the Eighth Amendment did not permit the defendant to be sentenced to a term greater than that authorized for conviction of assault with intent to murder.2 Our specific holding was “the Constitution does not sanction the imposition of a greater punishment for a lesser included offense than lawfully may be imposed for the greater offense.” 544 F.2d at 170.
We think that holding is applicable here. The only difference between Roberts *612and the instant case is that in Roberts the defendant was charged with aggravated assault and common law assault. But we think this difference does not amount to a distinction. Common law assault is a lesser included offense of the various forms of statutory assault in those cases where the circumstances of the crime would support a conviction for the statutory offense, regardless of whether the statutory offense is charged.
The Maryland Court of Appeals has reached the same result as Roberts in a case in which the accused was charged with both a greater offense and a lesser included offense and convicted only of the lesser included offense. However, it emphasized that it did so as a matter of Maryland common law and not under the compulsion of the Eighth Amendment or the Maryland Declaration of Rights. Simms v. State, 421 A.2d at 964. The stated basis of the decision was that “where the State charges both assault with intent to rob and simple assault ... the State has in effect elected to prosecute for the ten year maximum specified for the greater offense of assault with intent to rob.” Simms at 965.
More importantly, the Simms Court in dictum rejected the proposition that the punishment for a lesser included offense may not exceed the maximum described for the greater offense, even where the greater is not charged. Explaining this position, the Maryland Court of Appeals first noted that “when the Legislature creates a greater offense by adding an element to a basic crime” the added element occasionally may be “viewed as a mitigating rather than an aggravating factor, and for this reason a lesser penalty is provided for the particular greater offense.” Simms at 965. It also commented that “[s]ome ‘simple assaults’ may involve more brutal or heinous conduct than may be present in other cases falling within one of the statutory aggravated assaults”, and when this occurs and the accused is prosecuted only for common law assault, a sentence exceeding the statutory maximum for statutory assault would not be proscribed by the Eighth Amendment. Id. The Court concluded, “we do not believe that a sentence for simple assault, which exceeds the ten year maximum sentence for assault with intent to rob, necessarily violates the prohibition against cruel and unusual punishment.” Id.
With due respect to our Maryland brethren, we do not find either point persuasive.
First, we doubt whether a greater statutory offense may be less heinous than a lesser included common law offense. The examples given in Simms were shoplifting (the crime of larceny in a mercantile setting) and welfare fraud (the crime of false pretenses with respect to welfare payments), each of which carry maximum sentences less than the common law offenses which they include. The Maryland court deemed these statutory crimes to be examples of “less heinous greater offenses” because the additional element which must be proved to convict is a mitigating rather than an aggravating factor.
Under the general rules set forth in So-lem, the more aggravated offense involves a greater degree of culpability than the lesser offense it includes. Thus, it is arguable whether larceny and false pretenses, respectively, are lesser included offenses precisely because the additional elements needed to convict for the statutory crimes are mitigating circumstances rendering a defendant less culpable. Similarly, it is also arguable whether the “required evidence” test of Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), articulating the test to determine what is a “greater” and what is a “lesser” offense, applies when the additional element to be proved is a mitigating factor. In the Eighth Amendment context of proportionality inquiry, unlike the Fifth Amendment context of double jeopardy, there is no apparent logical necessity to count an additional mitigating element (as opposed to an aggravating one) for purposes of determining which is the greater or lesser offense. We do not, however, decide either of these issues.
With regard to the second objection raised in Simms, we recognize that there is an infinite variety of criminal conduct constituting common law assault, but not amounting to any form of statutory aggravated assault. In such a case the maxi*613mum sentences prescribed for the statutory assaults may be relevant for comparative purposes, but do not constitute a cap on the sentence which may be imposed. The instant case, however, is clearly not in this category because, as the trial judge said in imposing sentence:
Mr. Sutton, although the offense for which you were found guilty was assault, there’s no question in my mind that for all intents and purposes the assault was with an intent to murder. All the ingredients of assault with intent to murder are present here. I say this not to say I am sentencing you for that offense. I’m sentencing you for assault, but I am allowed whatever discretion I feel just and appropriate under the circumstances for an assault conviction, and I’m entitled to look at the nature of the assault.
If the facts were such that had he been prosecuted for assault with intent to murder he could have been found guilty, we think that it is equally true that if he had been prosecuted for assault with intent to maim or disable, he could have been found guilty of that crime.
Although we leave open the sentencing rule that would apply if a defendant is found guilty of common law assault on facts that would not support a finding of guilt of any form of statutory aggravated assault, we think that the Maryland statutory scheme determines the parameters of cruel and unusual punishment for any conviction of simple assault on facts that would warrant a conviction for aggravated assault, irrespective of whether the latter is charged. Maryland argues that the Legislature did not intend to preempt the field of assault crimes in creating a class of statutory aggravated assaults. This may be true with respect to the vast array of conduct amounting to assault, but not amounting to any form of statutory assault. However, this does not, as Maryland suggests, lead inexorably to the conclusion that the sentencing scheme thereby created does not preempt the field of permissible sentences for Eighth Amendment purposes where the acts constituting simple assault also constitute one or more forms of statutory assault.3
The argument that some criminal actions may warrant the imposition of longer sentences than those authorized under the least (or even under the most) aggravated statutory assault does not alter the fact that the Maryland Legislature has made its own determination of the appropriate maximum punishment for various classes of criminal assault. Thus, we reject the argument that the presence or absence of a cap on the permissible sentence for common law assault depends upon whether the prosecutor has also charged a statutory aggravated assault. We think that such distinction is irrational because it renders the existence of the statutory offenses meaningless, raises potential equal protection problems, and perhaps raises problems of denial of due process of law.4 Rather, *614the cap is one prescribed by the Legislature, and it applies even though the statutory crime is not charged.5
We therefore hold that where common law assault alone is charged and a conviction obtained by trial or plea of guilty, the maximum sentence which may be imposed, consistent with the Eighth Amendment, is the maximum sentence for conviction of the least aggravated statutory crime for which the evidence would support a conviction.6 On the facts of this case, Sutton could have been found guilty of assault with intent to maim or disable for which the maximum sentence is ten years. Of course, as the trial judge said, he could also have been found guilty of assault with intent to murder. But that crime was not charged, even if it was proved, so we look to the least aggravated crime of assault to identify the maximum permissible sentence.
AFFIRMED.
. The dissent challenges the necessity of any proportionality analysis in this case based on the court’s opinion in United States v. Rhodes, 779 F.2d 1019, 1027-28 (4 Cir.1985), and the avowed limits of Solem v. Helm, 463 U.S. at 290 n. 16, 103 S.Ct. at 3009 n. 16. See dissent, post at 616-617. In this case there is no necessity for the extensive and inherently factual proportionality analysis contemplated in Rhodes, nor are we endeavoring to substitute our "judgment for that of the sentencing court as to the appropriateness of a particular sentence.” We are engaged here in a much narrower inquiry, i.e., whether the Eighth Amendment precludes imposition of a longer sentence upon conviction of a lesser included common law assault than is legislatively permitted upon conviction of the related statutory offense which the prosecutor elected not to attempt to prove.
. In that case, unlike the instant one, no contention was made that the maximum sentence for common law assault was limited to the maximum sentence for the least heinous forms of aggravated assault (assault with intent to rob or assault with intent to maim). Rather we were asked to limit the sentence, twenty years per count with an aggregate of fifty-four years, to the maximum sentence for assault with intent to murder which was then fifteen years. We did not go beyond the contention of counsel.
. We find the dissent confusing on this point. The dissent first argues that this is one of the "special cases,” not covered by the Maryland statutory scheme but warranting a stiff sentence, and then quotes the precise language of the sentencing judge (also referenced in our opinion) which observes the contrary. See dissent, post at 615, 616. Our ruling today is confined to the situation where the facts support a conviction of a statutory aggravated assault. Under these circumstances, we can only conclude that a failure to bring the statutory aggravated assault charge combined with a longer sentence than may be imposed for a conviction of the aggravated crime results in a circumvention of the legislative sentencing scheme, and is therefore cruel and unusual.
. In In re Winship, 397 U.S. 358, 375, 90 S.Ct. 1068, 1078, 25 L.Ed.2d 368 (1970), the Court held that a state must prove all the elements of an offense beyond a reasonable doubt. Sutton argues that to permit the prosecutor to elect to try him only for common law assault and to permit him to be punished as severely as he could have been punished had he been charged with aggravated assault, without the necessity of proof of the additional factor required for conviction of the aggravated offense, would violate the holding in Winship.
We note that subsequent decisions by the Court in this area leave open the possibility that Sutton’s argument in this regard has merit. See Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), and McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986). Cf. United States v. Brewer, 841 F.2d 667, 668 (6 Cir.1988) ("Therefore, it appears that all nine members of the Court would require notice in the indictment and proof beyond a *614reasonable doubt of a fact that increases the punishment beyond the maximum set by the legislature for the other elements of the offense.") We do not decide this issue because it is not properly before us having never been raised in the prior proceedings. We mention it here only to highlight further the potential infirmities in Maryland’s position.
. The dissent argues that our reasoning is faulty because common law assault is not a lesser included offense of the various statutory assaults unless a statutory assault is actually charged. See dissent, post at 615-616. We cannot agree. The nature of the criminal offense must be determined by the facts of the case and the elements of the crime to be proved, not by the simple election of the prosecutor to bring a single or multiple count indictment. In the name of judicial sentencing discretion, the dissent would remove any necessity for the prosecutor ever to chose between the possibility of a longer sentence and the need to prove an additional element of the crime.
. To link the common law sentencing cap to the maximum penalty for any offense other than the least aggravated statutory assault for which the evidence supports a conviction also would countenance a circumvention of the proportionality scheme established by the Maryland Legislature.