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peals affirmed the convictions and dismissed the government's appeal (App. A, infra, 1a-45a).

Prior to respondent's first trial, the government filed a notice with the district court, pursuant to 18 U.S.C. 3575(a), alleging that respondent was a "dangerous special offender," as defined in 18 U.S.C. 3575 (e) (3) and (f). The notice indicated the government's intention to seek imposition of an enhanced sentence under 18 U.S.C. 3575 (b) in the event respondent was convicted (App. A, infra, 20a). On October 31, 1977, respondent was found guilty on the racketeering charges. The proof at trial showed that he had operated an "arson for hire" ring, the activities of which included multiple acts of arson and the use of the mails to defraud insurance companies of approximately $480,000 (id. at 3a).

Between the time of respondent's trial on the racketeering charges and the commencement of the special sentencing hearing required by 18 U.S.C. 3575 (b), respondent was tried and convicted in the second proceeding against him. In that case, the evidence showed that he had bombed the Federal Building in Rochester, New York, with dynamite that he had unlawfully stored (App. A, infra, 2a, 16a n.9).

Subsequently, on March 17, 1978, the special sentencing hearing was held, and on April 21, 1978, the district court ruled that respondent was a dangerous special offender. Nevertheless, on April 28, 1978,

2 Among its findings of fact, the court found that respondent's "criminal history, based upon proven facts, reveals a pattern of habitual and knowing criminal conduct of the most

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the court sentenced respondent to concurrent terms of 10 years' imprisonment on the racketeering charges, to be served concurrently with the nine-year sentence that had already been imposed on March 17, 1978, in connection with his second trial (App. A, infra, 21a).

Under the authority granted by 18 U.S.C. 3576, the government appealed from the dangerous special offender sentence, claiming that the district court abused its discretion in imposing a sentence that would lead, in effect, to additional imprisonment for only one year despite the court's findings after the dangerous special offender hearing (App. A, infra, 21a-22a; see note 2, supra). The court of appeals dismissed this appeal on the ground that 18 U.S.C. 3576 violates the Double Jeopardy Clause. The court held that the constitutionality of the statute was a threshold jurisdictional issue that had to be faced before the merits of the government's appeal could be reached (App. A, infra, 23a). Finding that it

violent and dangerous nature against the lives and property of the citizens of this community. It further shows the [respondent's] complete and utter disregard for the public safety. The [respondent], by virtue of his own criminal record, has shown himself to be a hardened habitual criminal from whom the public must be protected for as long a period as possible. Only in that way can the public be protected from further violent and dangerous criminal conduct by the [respondent]" (C.A. Pet. App. A. 59). ("C.A. Pet. App." refers to the appendix filed by petitioner in the court of appeals.)

3 The concurring opinion of Judge Haight suggests that the government's appeal should have been dismissed because 18 U.S.C. 3575 and 3576 were inapplicable to respondent (App. A, infra, 44a-45a). The majority of the court disagreed,

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was "obliged to construe strictly the procedure that Congress has authorized" (App. A, infra, 28a), the court noted that the sentence imposed by the district court was final rather than "tentative." Relying primarily on Kepner v. United States, 195 U.S. 100 (1904) (App. A, infra, 29a-30a) and a number of statements in dicta by this Court and the courts of appeals (id. at 33a-36a), the court concluded that "the double jeopardy clause bars an increase in the sentence imposed by the district court" (id. at 36a) and accordingly that the government could not challenge a final sentence on appeal.

REASONS FOR GRANTING THE PETITION

1. In dismissing the government's appeal, the court of appeals has declared unconstitutional on its

finding that Section 3575 could properly have been applied to respondent (App. A, infra, 23a-24a n.13). In any event, that issue is not presented here. The court of appeals held that it lacked jurisdiction to entertain the government's appeal because of the unconstitutionality of Section 3576. Until jurisdiction is established, a court cannot consider the merits of the issues presented to it for resolution. See Alabama Public Service Comm'n v. Southern Ry., 341 U.S. 341, 347 (1951).

The legislative history indicates that Congress clearly intended that the sentence would not be final until the appeal had been exhausted. The original bill introduced in the Senate explicitly provided that the district court sentence was "not final." S.30, 91st Cong., 1st Sess., § 3577 (1969). Measures Relating to Organized Crime: Hearings Before the Subcomm. on Criminal Laws and Procedures of the S. Comm. on the Judiciary, 91st Cong., 1st Sess. 28-29 (1969). It was felt, however, that such a label was superfluous and it was omitted from the statute. S. Rep. No. 91-617, 91st Cong., 1st Sess. 98 (1969).

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face an Act of Congress that was carefully drafted with constitutional considerations in mind. See S. Rep. No. 91-617, 91st Cong., 1st Sess. 93-98 (1969). The appellate review of sentence provision in 18 U.S.C. 3576 is part of the Dangerous Special Offender Sentencing Statutes, 18 U.S.C. 3575-3578, which were enacted as Title X of the Organized Crime Control Act of 1970, Pub. L. No. 91-452, 84 Stat. 948. Section 3576 was, in part, a response to the recommendation of the President's Commission on Law Enforcement and Administration of Justice that "[t]here must be some kind of supervision over those trial judges who * * tend to mete out light sentences in cases involving organized crime management personnel." Report of the President's Commission on Law Enforcement and the Administration of Justice: The Challenge of Crime in a Free Society 203 (1967). The court of appeals' decision has nullified a carefully considered legislative effort at such supervision.

Moreover, the court's decision has implications that reach far beyond the specific context of Section 3576. First, the ruling almost certainly invalidates the quite similar statute permitting the government to seek appellate review of sentences of special drug offenders, 21 U.S.C. 849 (h). Perhaps more important, it also would appear to cast substantial doubt on the validity of a key section of the revised criminal code that is now pending in Congress. This section permits appellate review, at the government's behest,

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of sentences that are not within specified guidelines." The purpose of the provision is to reduce unwarranted disparities in sentencing and to promote equal treatment of similarly situated offenders. See the National Commission on Reform of Federal Criminal Laws, Final Report 317 (1971). If disparities in sentencing cannot be eliminated by other means, legislatures may be induced to limit the sentencing flexibility of trial judges, contrary to the "prevalent modern philosophy of penology that the punishment should fit the offender and not merely the crime." Williams v. New York, 337 U.E. 241, 247 (1949). See United States v. Grayson, 438 U.S. 41, 45-49 (1978). The

5 S. 1722, 96th Cong., 1st Sess. § 3725 (b) (1979) provides:

(b) APPEAL BY THE GOVERNMENT.-The_government may, with the approval of the Attorney General or his designee, file a notice of appeal in the district court for review of an otherwise final sentence imposed for a felony or a Class A misdemeanor if the sentence includes a lesser fine or term of imprisonment or term of supervised release than the minimum established in the guidelines, or includes a less limiting condition of probation or supervised release under section 2103 (b) (6) or (b) (11) than the minimum established in the guidelines, that are issued by the Sentencing Commission pursuant to 28 U.S.C. 994 (a) (1), and that are found by the sentencing court to be applicable to the case, unless—

(1) the sentence is equal to or greater than the sentence recommended or not opposed by the attorney for the government pursuant to a plea agreement under Rule 11(e) (1) (B) of the Federal Rules of Criminal Procedures; or

(2) the sentence is that provided in an accepted plea agreement pursuant to Rule 11(e) (1) (C) of the Federal Rules of Criminal Procedure.