join dissenting:
The text for appellate decision-making in today’s case, found in North Carolina v. Pearce, states:
Due process of law, then, 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. And since the fear of such vindictiveness may unconstitutionally deter a defendant’s exercise of the right to appeal or collaterally attack his first conviction, due process also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge.
In order to assure the absence of such a motivation, we have concluded that whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. And the factual data upon which the increased sentence is based must be made part of the record, so that *1094the constitutional legitimacy of the increased sentence may be fully reviewed on appeal.
[N]either at the time the increased sentence was imposed upon Pearce, nor at any stage in this habeas corpus proceeding, has the State offered any reason or justification for that sentence beyond the naked power to impose it....
(Footnote omitted.) 395 U.S. 711, 725, 726, 89 S.Ct. 2072, 2080, 2081.
A.
My initial point of difference with the opinion of the majority is its requirement that Vontsteen make a contemporaneous objection at the time he was resentenced in order to avoid plain error review of his appeal of a sentence that, in the words of Pearce, could be “unconstitutional” and “vindictive.” Pearce does not hold that a trial judge is required to speak reasons into the record. Rather, Pearce requires no more than that the reason for an increased sentence “must affirmatively appear” either in the remand record or at some stage of collateral review. The majority says that “must” was used in the rule laid down in Pearce merely as a “general feature.” If it was not used in its compulsory, obligatory connotation — the definition contained in every dictionary — Pearce’s holding loses its meaning. Much more than judicial economy or appellate orderliness is implicated. The appearance of justice is the root of Pearce. Unless justice can be seen, injustice must be presumed.
As Pearce explains, the purpose of an explicit record showing is to free a defendant from the apprehension of retaliatory motivation that otherwise could chill the right to appeal. It is illogical to require a defendant to object to what the sentencing record fails to show. The illogic is reinforced by the fact that Pearce would allow the required affirmative showing of reasons to be made on collateral review. No objection at the time of resentencing was necessary.
B.
The majority apparently agrees that nothing known to this court in the record of Vontsteen’s case affirmatively discloses the trial court’s reasons for increasing the sentence on Count 22 from five years’ probation to a ten-year sentence of imprisonment. It may be that Judge Hittner followed the aggregate-package approach and for that reason sentenced Vontsteen to the ten-year sentence of imprisonment originally imposed only on the 21 reversed counts. We can also speculate he might have imposed the sentence of ten years’ imprisonment because that had initially been what he decided was the proper punishment for the Count 22 crime of transporting stolen goods in violation of 18 U.S.C. § 2314.
This court’s first opinion which remanded for resentencing expressly left to the trial court’s discretion the determination of whether Vontsteen’s sentence on Count 22 should be “the same or a lesser or greater sentence than he received originally.” 872 F.2d at 632. That opinion did not, however, leave to the trial court the prerogative to impose a greater sentence without the showing required by Pearce. Based solely on what the record before us today shows, it is equally possible that the trial judge determined that Vontsteen should not benefit from securing reversal of the sentence he imposed on all but one of the original counts. This sentencing decision would be vindictive and unconstitutional. Such a possibility is the reason Pearce requires we assume vindictiveness. This assumption does not cast any aspersion on the trial judge. Pearce was written to protect the right of appeal when a record was silent as to reasons. To do so, it requires our review be compelled to presume vindictiveness. An unrebutted presumption requires we overturn the sentence or remand for clarification.
C.
Albeit for reasons different from those applied by the majority, this resolution does not necessitate a decision of the aggregate sentence count issue. The appearance of vindictiveness is Pearce’s turn*1095ing point. The record before this court creates that appearance. Pearce says our record must affirmatively demonstrate the trial judge’s basis for a decision. Because this record does not, there is no basis for resolution of the issue that is now beclouded in our past decisions. Resolution of the aggregate sentence issue would only become necessary to our decision if the record showed the aggregate sentence approach was the basis for increasing the sentence on a single affirmed count.
D.
It is easy for us to find out why Judge Hittner acted as he did. From a practical standpoint, it is difficult to understand why the court does not choose the simple expedient of sending this case back to the district court for an explanation he can, in all likelihood, readily give.
Because no reason or justification for the sentence imposed, beyond the naked power to impose it, affirmatively appears in the record before us, I respectfully dissent from the affirmance of a sentence that must be presumed to be unconstitutional and vindictive.