*1 Correction, Appellees. HALL, Before MURNAGHAN and ER- VIN, Judges. No. 84-6247.

United Appeals, States Court of PER CURIAM:

Fourth Circuit. Timothy appeals Willie Sweetwine from order, the district dismissing court’s his Argued June 1985. petition corpus pursu- for a writ of habeas Aug. Decided ant to 28 U.S.C. 2254. We affirm. § appeal, On Sweetwine contends that im- position of a twenty-year upon sentence his conviction at trial of armed in vio- (1982 lation of art. 27 Md.Ann.Code § Repl.Vol.), after he successfully ap- had pealed guilty plea simple from his rob- bery, for which he had been sentenced to six under Md.Ann.Code art. (1976 Repl.Vol.), constitutes a denial *2 992 recently reject- ing guilty trial results in a verdict for process due of law. We greater offense. by made essentially the same

ed under the federal a defendant sentenced by I am no means convinced that 2113, statute, 18 U.S.C. bank appearance of vindictiveness which under- (4th 759 F.2d 327 Whitley, v. United States lies the rationale of North v. Carolina There, Cir.1985)(en banc). we stated that: Pearce, 711, 2072, 89 S.Ct. L.Ed.2d 656 is eradicated of either actual vindictive- The likelihood 1) proffered distinction between a apprehension ness or vindictiveness degree punish- crime with an enhanced minimal sentence ... is when second ment for a more serious variation and a imposed greater for an offense than is constituting sepa- lesser included offense original that which was the basis of the which, upon rate crime conviction of the complete explanation conviction. The offense, greater is nevertheless blotted out penalty the harsher is obvious on the punishment. of conviction or judgment convicting the defend- face which, appearance of vindictiveness greater ant of the crime. is, process, the name of due under reasoning equally at 332. This same is Id. to be avoided is an attitude of mind to be applicable to the case at bar.1 general public, found in especially and agree Nor do we Sweetwine that crime, charged those not merely, or sentencing judge the second failed to artic- predominantly, legal in the of the members supported by ulate factual data for a basis profession who are trained in subtle distinc- the increased On the facts of sentence. readily perceived by tions not those whose case, notably this is absent. vindictiveness education has not been in law. Accordingly, judgment below is af- my suppose It is not to mind realistic to firmed.2 appreciate mass of mankind will that two such definitional look-alikes with

AFFIRMED. respect charges growing single, out of a integrated may set of properly events MURNAGHAN, Judge, concur- significantly endowed with such different ring: legal consequences.3 Nevertheless, decided, The law has been Whitley, after is the the Fourth writing panel correctly Hall in for the Circuit, and, all, if that were I should have applied dispositive subject case filling pages no business of the federal was laid what down United States v. reports with a concurrence. But there is (4th Cir.1985) (en Whitley, 759 F.2d more, something something never suffi- banc). The court there impo- held that the ciently argued to the court. It guilty plea sition of sentence on a to a argued in Whitley; at all it has been lesser included offense does when sub- advanced Sweetwine on a basis of too vacated, sequently little, set a maximum for the too late.4 The is that those two sentence to be meted out generally unsympathetic where the ensu- otherwise charac- Maryland appellate previous 1. The courts have 3. Nor do I understand how concerns for vindic- ly simple robbery tiveness, held that armed appearance, or at least its can be al- sentencing purposes. are distinct offenses for layed where the first time around the sentence State, 1, 8, Md.App. Sweetwine v. 398 A.2d was 6 when the maximum that could have 1262, 199, 1, (1979), aff’d, 288 Md. 201 n. imposed years, yet been the sentence 1, denied, 421 A.2d 61 n. cert. U.S. following plea trial after vacation of was 20 (1980); Bynum see statutory the full maximum. 339, 341, 277 Md. 357 A.2d denied, cert. Sweetwine, having 4. Counsel for never made to which I refer in the district court or appeal, only adopted argu- in the brief on 2. We have considered Sweetwine’s motion for after, last, ment a member of the hear- testimony ment, day argu- in abstentia filed on the ing appeal sponte sua raised it. and it does not alter our decision. ters, Sweetwine, point, Even been more to the at the time when switches, caught but the case for had had to make his choice be- a) taking continuing into that consideration account has tween live with his bargained twenty-five sufficiently year been made. (subsequently twenty year) reduced to b) sentence and us, Whitley, when his case came before utilizing option open an clearly himto *3 of level, panel entirely could with at rea- vacating improperly an obtained and sonable, out, though, things as have turned seeking a in favorable verdict ensuing confidence, misplaced with have relied and trial, presented the choice apparent no risk. did on in rely holdings doubtless Wal- appeared The choice to Whitley really not Harris, (4th Cir.1972) ters v. 460 F.2d 988 to a Whitley, be choice since in the of States, 519 and v. United F.2d Crawford Walters, altogether was in justified pro- (4th Cir.1975) 347 that 18 U.S.C. 2113 § ceeding the understanding on that there single robbery created a of bank offense was no risk sentence in excess of 20 provision penalties for enhanced based years. circumstances, In such prisoner a of aggravating on the existence circum- hardly can be faulted for pursuing even a stances.5 hope jury forlorn that might a somehow be Finally, Walters claims he that was persuaded acquit. to To attempt to save a improperly sentenced the district part years substantial 20 life, of of one’s at pleaded guilty court. He to two counts existing least where the guarantees of an charging indictment violations of that chance taker off, can be no worse statute, federal bank 28 U.S. virtually is a foregone election. 2113(a) (d). C.A. and Both counts §§ event, any level, In at the en banc Whit- arose out of the same transaction. Wal ley’s quite reasonably counsel argued only ters twenty was sentenced to on for interpretation continuance of the of count, each sentences run concur 2113 announced this court in § Walters rently. It Congress was not the intent of holdings in from other circuits.6 by the various of 18 sections U.S.C.A. 2113 create a number of distinct § No by Whitley’s asserted coun- single robbery. crimes for a bank See that, sel if even the Walters rule was to be States, 415, v. United 358 U.S. 79 abrogated general, in it should Heflin not be done 451, (1959); S. Ct. 3 L.Ed.2d 407 Prince v. in way punish those, such a as to 322, States, 403, United 352 U.S. who, in particular, every justification, Rather the various binding interpretation had relied a of pun- sections “create different maximum the statute at a time when it inwas full single ishments for a depending offense force effect. The contention was first on whether aggravating circumstances brought up in my dissent from the en banc exist”, States, Eakes v. United 391 F.2d disposition Whitley. However, indepen- 287, (5th Cir.1968), imper- it is dent of validity whether the or to impose missible sentence under more my colleagues justified were in paying transaction, single than one of heed, section a it no inasmuch as counsel for neither Prince, Heflin, supra; see supra. party argued point.7 issue, had Butzner, majority 5. Regan, the author en 7. Carducci v. 714 F.2d Cf. level, opinion (D.C.Cir.1983); Whitley, Atkinson, banc at but see United States v. 157, perceived binding precedent dictated ac- S.Ct. 80 L.Ed. 555 ceptance circumstances, ("In single exceptional espe- there was but a crime. when, level, Only cases, courts, cially appellate the en banc he was freed to in criminal in the interest, binding motion, precedent public may, overrule a did take differ- own their no- approach. ent exception tice errors to which no has been tak- en, obvious, they if the errors or if are other- fairness, seriously integrity wise affect Whitley, See or 6. United States 759 F.2d 331 n. public reputation judicial proceedings."). cases, or, gravated for again presented, therefore, factually resolution, crimes,” with one a lesser two “different open regarded should be Yet, of the other. it had included offense by Whitley. foreclosed explicitly decided been strong, is not so The case Sweetwine deadly simple robbery and with a degree is not the difference perhaps, but weapon crime when the were but argu- made no likewise great. His counsel whether there had been double change although the sea us ment to subsequent jeopardy, preventing enhanced should hereafter by Whitley brought about See, sentencing. e.g., Bynum v. force, retroactively fully in it should (1976), 703, 707, 357 A.2d cert. Md. briefs for Sweet- When affect Sweetwine. denied, Court, pan- presented wine were (1976) (“Both 486 and § so prevailed still el decision punishment for the same sub- prescribe the *4 a non-re- to make had no occasion counsel crime, robbery, common law with stantive Whitley argument. Under the troactivity only being that a more se- the difference 1) decision, single the applying either penalty robbery the is vere is fixed where (the path by approach followed crime perpetrated ‘dangerous with the use of a or concurrence) 2) following in his or Butzner Therefore, weapon,’ Art. deadly rationale v. Pearce the North Carolina only robbery offense of with a since the took), a (the panel majority sen- route the deadly weapon requires proof of an addi- possi- years not of more than 6 tence element, elements tional so that all of the retroactivity against The ble. present are in the offense of the en banc first surfaced when deadly weapon, the offenses robbery with a for Sweet- decision came down. Counsel the same for of the double are supplemen- leave to file a did not seek wine prohibition.”). jeopardy changed in of the circum- brief tal by Whitley the en banc stances occasioned 2) very competent coun- Sweetwine had Hence, the same factual should decision. leading Maryland practitioner seling from a case,8 in another the decision posture arise specializing charged in defense of those inquiry full into wheth- here should bar as- crime. Elsbeth L. Bothé was an with was retro- happened er what to Sweetwine City. for Baltimore public sistant defender law, changed rule of application of a active by capabilities were attested to her Her so, and, with whether that is consonant virtually contemporaneously appointment, by process due play the fair demanded in the decision adverse to Sweetwine See, e.g., City Bouie v. Colum- clause. (which, the Baltimore Criminal Court 347, 362, 1697, 1707, bia, 378 U.S. courts, merged with other was then known City, Supreme Bench of Baltimore as the Court of Balti- but is now titled sufficiently If such an had been very City), judge in that same more as situation, there are made into Sweetwine’s court. telling pointing his favor. considerations 3) time when Sweetwine success- At the

1) not decided Maryland The courts had plea offense of fully vacated his to the criminal behavior of Sweet- whether the. sentence, simple robbery year and six single crime description merited as a wine risk of an ag- apparently was not alerted to the sentencing permitted with enhanced even, guided judicial corpus discretion possibly, exercise of a sound 8. Or in another habeas application See Sanders v. Unit- of whatever Sweetwine. and controlled a consideration 1, 9, States, bearing propriety ed of the has a rational (1963) (Court inapplica- Loisel, reaffirmed ”) Salinger discharge sought' (quoting bility judicata subsequent of res 519, 521, doctrine 224, 231, S.Ct. 68 L.Ed. 989 recognized corpus petitions but habeas (1924)). disposed application of in the “‘each is to be go sentence of as much as ahead with trial. There something enhanced is (more great). lacking as Elsbeth basically 3 times L. than fundamental fairness to held, of firm conviction put Bothé as a matter Sweetwine such a Hobson’s merely possibly theory as a viable charge, pregnant and not so consequences defendants, him, the belief to criminal tripling favorable with a risk of a of his sentence analysis prop- hand, crime on the one surrender of his Circuit, apply. er one to Since Fourth right even to seek acquittal on the other. time, things, similar took a view 6) things It makes even worse when one hardly can be Mrs. Bothé blamed hav- bears in mind time ing done so. made, when that decision had Sweet- ugly possibility when the sur- Even wine was allowed a lunch time break faced, following upon just the trial vaca- lasting no more than an hour or two to begin, tion of was to and the state up make his mind. Maryland appellate judge expressed his under- court trial spoken. courts had not Sweetwine v. standing preclude that the law did not an State, Md.App. 398 A.2d up to Els- enhanced sentence of (1979) (“At outset, we note that armed beth L. Bothé remained convinced simple robbery are ‘the interpretation judge trial was in in his error same sentencing offense’ for purposes and Bearing mind law. contemplation within the of North Car- en decision had not seen banc *5 olina notwithstanding the fact that light day that jeopardy purposes, primari- for double Appeals Special Ap- Court of and Court of ly aspect jeopardy of double peals spoken subject, had not on the against guarding multiple punishment, Bothé’s of view was defensible. She they ”), are treated as same ‘the offense.’ gave very professional advice, warning and Sweetwine v. 288 Md. consequences Sweetwine of the if he A.2d each first saw the should refuse the renewed offer day well after 1978. bargain on the same terms as the one he Thus, it seem would non-retroac- vacated, having had succeeded in and if her tivity point par- not been made up. Still, view law should stand ties, only belatedly at all in Whitley, and professionally believing as she did half-heartedly oral then law, judge misperceived state trial Els- I Sweetwine. to make concurred beth L. Bothé do no could other than she question undisposed remains expectation express did. She had to her subsequently should it ever surface. trial, ahead Sweetwine went end, could to sentenced more years.

than six realistically That amount- heavily persuasive

ed to from advice rely source which Sweetwine could deciding accept to whether refuse or plea.

the renewed circumstances, Under those Sweet-

wine, having trial, prepared for months for standing appeared him what to be escape vile,

the threshold of from durance hardly, any

could under reasonable view of

matters, deciding have been faulted for