dissenting.
The majority opinion tells Vontsteen that by obtaining the reversal of 21 of the 22 counts on which he was convicted and for which he was sentenced he has achieved nothing but a Pyrrhic victory. Under the original sentence, if he had complied with the conditions of probation, he would have served no time in prison; instead, he has *195been sentenced to ten years incarceration on the one remaining count. Absent explanation, this increase is sufficient to create a reasonable apprehension by the defendant of vindictiveness against him for his otherwise successful appeal. I cannot shrug off the difference between no time and ten years in federal durance, nor can I discern, under these circumstances, any reason for the majority’s hortatory “strong” recommendation that in the future a court state its reasons for such conduct unless that dicta eases the majority’s concern for approving what it recognizes as the “potential for a vindictiveness claim in any resen-tencing.” If the district court is not required to provide any explanation, why recommend that district courts do the unnecessary? I therefore respectfully dissent from section 11(C) of the majority’s decision, regarding the application of the presumption of vindictiveness from North Carolina v. Pearce,1 and, therefore, dissent from the judgment.
Pearce recognized that “[d]ue process of law ... requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial.”2 “[D]ue process also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge.” 3 In addition, due process protects a defendant from vindictiveness for having successfully attacked his sentence even when the conviction itself is affirmed. The issue is simply whether the trial judge’s increase in the sentence on count 22 from ten years suspended, with five years probation, to ten years incarceration, is sufficient to invoke the Pearce presumption of vindictiveness and require the trial judge at least to explain his action. Absent explanation, so drastic an increase makes the reversal of the original sentence a paper triumph for the appellant.
The majority suggests three bases for its refusal to apply the Pearce presumption. I respectfully disagree with each.
A.
First, it is plainly not the law of this circuit that sentencing “after a new trial [is] one of the stated prerequisites for triggering the Pearce presumption.”4 As we have previously observed, “[t]he Court captured the notion of vindictiveness in the discrete occurrence of a reversal on appeal prompting the lower court to punish the defendant.”5 Put another way, “when a trial court imposes a harsher sentence after a successful appeal, due process as interpreted in Pearce requires the court to set forth reasons justifying the increased sentence to overcome a presumption of vindictiveness.” 6 Accordingly, this circuit has considered the Pearce presumption involved in offense recategorization by a panel of the United States Parole Commission7 and in remands solely for resentencing.8 The Supreme Court has repeatedly emphasized that the evil targeted by Pearce is the vindictiveness of the sentencing judge, not the mere fact that an enlarged sentence was imposed after a new trial.9 Indeed, *196Texas v. McCullough recently noted that the burden of a new trial is not a persuasive basis for a Pearce presumption.10
B.
The majority then attempts to distinguish Pearce on another ground: Vontsteen did not receive a “net increase” in his sentence, and “arguably” received a net decrease since his total original sentence amounted to ten years in prison and five years probation, compared to the ten years in prison imposed upon resentencing.11 The majority would thus adopt for the first time the “aggregate package” rule prevailing in several other circuits.12 As the majority observes, the plurality opinion for this court en banc in United States v. Henry stated in dicta that the modification of a concurrent sentence to run consecutively after successful appeal of other charges evoked Pearce even though there was an aggregate decrease in the appellant’s sentence.13 The six dissenting judges also fully agreed with this dicta, observing that “[o]f course there has been an increase, in the only sense of the word ‘sentence’ that can matter much to Henry: because of the trial court’s action he had ten years to serve rather than only seven.” 14 Although the Henry dicta has been questioned in subsequent opinions concerning double jeopardy15 and in a portion of a due process discussion that was itself unnecessary to decision,16 its rationale has also been endorsed by the reasoning of later panels.17 The only authority to the contrary consists of United States v. Forester, which at most examines the Pearce presumption through the weak lens of plain-error review.18
The majority thus breaks new ground in comparing only the total original sentence with the sentence finally imposed, and, in so doing, contravenes Pearce. Pearce focused on the misuse of the sentencing judge’s discretion, not on matters beyond his control; here, no retrial, resentencing, judicial discretion, or vindictiveness was legally possible with regard to the overturned counts, which the majority would nevertheless crowd onto its scales.
The warrant for applying the Pearce presumption in cases like this is more than merely algebraic. Under these circumstances, the trial judge surely has a “personal stake in” the judgment originally entered and a “motivation to engage in self-vindication.” 19 The convicted defendant may have a reasonable apprehension that the trial judge desires to deter appeal20 and that his ultimate sentence is vindictive.21 When an unexplained increase in sentence on a remaining, valid count foi-*197lows a successful appeal of other counts, resulting in a sentence very nearly equivalent to the sentence originally provided, there is a “reasonable likelihood”22 that open and equal access to the appellate review of criminal convictions has been unconstitutionally impeded.23
Our opinion reversing the original conviction expressly provided that the judge upon resentencing was not limited to the probationary sentence originally imposed on count 22.24 The judge may have had a valid explanation for increasing that sentence or, indeed, for requiring virtually the same sentence for a single law violation as that imposed for 22 transgressions. Pearce does not automatically invalidate an increased sentence whether the case involves retrial of a single count or resen-tencing after the reversal of only some of multiple counts. It merely requires explanation. By the majority’s rationale, the same judge who must give reasons for his judgment in a minor civil proceeding so that they may be understood by the parties and evaluated on appeal may convert no prison time to ten years in a criminal case by sheer ipse dixit.
Requiring the sentencing judge to explain the sentence imposed under these circumstances implies no doubt of the integrity or wisdom of the trial judge. It is simply a means to allay reasonable suspicion that undertaking even a successful appeal was a feckless effort, and to enable a reviewing court to perform its duty on the basis of information rather than speculation. That the judge must have desired to effectuate the same sentence notwithstanding the reversal of 21 of 22 counts and the loss of 105 years of available sentence explains nothing save the obvious. The trial judge patently desired to do just that. The question is why. If anything, better reason for an increase might be presumed in the Pearce situation after a retrial at which evidence of different conduct or events might crop up.25
The rule created by the majority necessitates proof of “actual or apparent vindictiveness by the trial judge,” a formidable task. How would a defendant prove such vindictiveness by a judge who said nothing but merely announced a sentence? Under the majority’s rationale, a de minimis sentence could be increased indefinitely to its statutory maximum if 21 consecutive capital sentences had been vacated as the result of illegal convictions, even if the surviving charge was originally of an entirely different order. The prospect that a reversal of convictions on 21 counts will result in the same sentence as that originally imposed presents the type of “appeal chilling” that the prophylactic rule of Pearce was designed to prevent.26
C.
Finally, the majority appears to suggest that its decision is supported by a trend in the Supreme Court to lessen the scope of the Pearce presumption. Assuming our work to be directed by dipping our judicial fingers in the water for such currents, I find no such flow in the post-Pearce opinions. The later cases do emphasize a premise explicit in Pearce: for a presumption of vindictiveness to arise, the sentencer must at least be the same,27 but that distinction does not apply here. The only other development has been the rejection in Alabama v. Smith of the rule implicit in Simpson v. Rice, the companion case to Pearce; in Smith the initial sentence was based on a guilty plea and the second sentence followed a trial at which new information *198became available.28 For Vontsteen, trial preceded and provided the same information for both sentences, but the judge inexplicably increased the earlier sentence. Indeed, the majority would disable the Pearce presumption in all situations inverting the Smith problem, requiring retrial as a condition for providing the presumption of vindictiveness.29
D.
The majority may be unduly reluctant to apply the Pearce presumption because they exaggerate the effect of doing so in this situation. The presumption is not a per se rule insensitive to meaningful distinctions, and responds to differing circumstances brought to the court’s attention upon re-sentencing as well as to the means by which the reasons for imposing the suspect sentence “affirmatively appear.”30 Because Vontsteen’s increased sentence on count 22 is the only sentence meaningful to him and because his circumstances present the classic indicia warranting a Pearce presumption, I would vacate the sentence imposed on count 22, remand for resentencing in accordance with our original mandate, and, if the new sentence increases his punishment on that count, for an explanation why it is appropriate and not retaliatory.
. 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969).
. Id. at 725, 89 S.Ct. at 2080.
. Id. at 726, 89 S.Ct. at 2080.
. Slip op. at 5861, at 193 (emphasis added).
. Kindred v. Spears, 894 F.2d 1477, 1479-80 (5th Cir.1990).
. United States v. Cataldo, 832 F.2d 869, 874 (5th Cir.1987), cert. denied, 485 U.S. 1022, 108 S.Ct. 1577, 99 L.Ed.2d 892 (1988).
. Kindred, 894 F.2d at 1479-80.
. United States v. Forester, 874 F.2d 983, 984 (5th Cir.) (per curiam), cert. denied, — U.S. -, 110 S.Ct. 284, 107 L.Ed.2d 264 (1989); United States v. Colunga, 812 F.2d 196, 199-200 (5th Cir.) (Colunga II), cert. denied, 484 U.S. 857, 108 S.Ct. 165, 98 L.Ed.2d 120 (1987); United States v. Colunga, 786 F.2d 655, 659 (5th Cir.1986) (Colunga I).
. See Alabama v. Smith, — U.S.-, 109 S.Ct. 2201, 2204, 104 L.Ed.2d 865 (1989) (citing Texas v. McCullough, 475 U.S. 134, 138, 106 S.Ct. 976, 979, 89 L.Ed.2d 104 (1986); Chaffin v. Stynchcombe, 412 U.S. 17, 25, 93 S.Ct. 1977, 1982, 36 L.Ed.2d 714 (1973)).
. Texas v. McCullough, 475 U.S. 134, 139, 106 S.Ct. 976, 979, 89 L.Ed.2d 104 (1986).
. Slip op. at 5860 & n. 3, at 192 & n. 3.
. Similar rules have been adopted by the First Circuit, see United States v. Pimienta-Redondo, 874 F.2d 9, 14-16 (1st Cir.), cert. denied, — U.S. -, 110 S.Ct. 233, 107 L.Ed.2d 185 (1989); the Third, see Kelly v. Neubert, 898 F.2d 15, 16-18 (3d Cir.1990); United States v. Busic, 639 F.2d 940, 951 n. 12 (3d Cir.), cert. denied, 452 U.S. 918, 101 S.Ct. 3055, 69 L.Ed.2d 422 (1981); the Fourth, see United States v. Gray, 852 F.2d 136, 138 (4th Cir.1988); and the Ninth, see United States v. Bay, 820 F.2d 1511, 1512-14 (9th Cir.1987); United States v. Hagler, 709 F.2d 578, 579 (9th Cir.), cert. denied, 464 U.S. 917, 104 S.Ct. 282, 78 L.Ed.2d 260 (1983).
. 709 F.2d 298, 315 (5th Cir.1983).
. 709 F.2d at 323 (Gee, J., dissenting) (emphasis in original).
. Colunga I, 786 F.2d at 658 n. 4; United States v. Crawford, 769 F.2d 253, 258 (5th Cir.1985), cert. denied, 474 U.S. 1103, 106 S.Ct. 887, 88 L.Ed.2d 922 (1986).
. Cataldo, 832 F.2d at 874-75.
. See Paul v. United States, 734 F.2d 1064, 1067 n. 3 (5th Cir.1984) (dicta); cf. Kindred, 894 F.2d at 1479.
. 874 F.2d at 984.
. Chaffin, 412 U.S. at 27, 93 S.Ct. at 1983.
. Paul, 734 F.2d at 1067 n. 3 (emphasis in original); see Bordenkircher v. Hayes, 434 U.S. 357, 363, 98 S.Ct. 663, 667-68, 54 L.Ed.2d 604 (1978).
. See Pearce, 395 U.S. at 725, 89 S.Ct. at 2080; see also Blackledge v. Perry, 417 U.S. 21, 27-28, 94 S.Ct. 2098, 2102, 40 L.Ed.2d 628 (1974); Longval v. Meachum, 693 F.2d 236, 237 (1st Cir.1982).
. Smith, — U.S. at -, 109 S.Ct. at 2205 (quoting United States v. Goodwin, 457 U.S. 368, 373, 102 S.Ct. 2485, 2488, 73 L.Ed.2d 74 (1982)).
. Cf. Blackledge, 417 at 25 n. 4, 94 S.Ct. at 2101 n. 4.
. See United States v. Vontsteen, 872 F.2d 626, 632 (5th Cir.1989).
. See McCullough, 475 U.S. at 141, 106 S.Ct. at 980; Wasman v. United States, 468 U.S. 559, 571-72, 104 S.Ct. 3217, 3224-25, 82 L.Ed.2d 424 (1984).
. United States v. Cataldo, 832 F.2d 869, 874 (5th Cir.1987), cert. denied, 485 U.S. 1022, 108 S.Ct. 1577, 99 L.Ed.2d 892 (1988).
. See Smith, — U.S. at-, 109 S.Ct. at 2206; McCullough, 475 U.S. at 140, 106 S.Ct. at 979-80; Chaffin, 412 U.S. at 26-28, 93 S.Ct. at 1982-83; Colten v. Kentucky, 407 U.S. 104, 116-17, 92 S.Ct. 1953, 1960, 32 L.Ed.2d 584 (1972).
. — U.S. at-, 109 S.Ct. at 2205-06.
. See supra section A.
. Pearce, 395 U.S. at 726, 89 S.Ct. at 2081.