449 U.S. 117, 101 S. Ct. 426, 66 L. Ed. 2d 328 (1980)
At a 1977 jury trial in the United States District Court for the Western District of New York, respondent Eugene DiFrancesco was convicted of conducting the affairs of an enterprise through a pattern of racketeering activity, and of conspiring to commit that offense, in violation of 18 U. S. C. §§ 1962 (c) and (d).1 The evidence at that trial showed that respondent was involved in an arson-for-hire scheme in the Rochester, N. Y., area that was responsible for at least eight fires between 1970 and 1973; that the ring collaborated with property owners to set fire to buildings in return for shares of the insurance proceeds; and that insurers were defrauded of approximately $480,000 as a result of these fires.2
At another jury trial in 1978—before a different judge in the same District—based on an indictment returned prior to the racketeering indictment, respondent was convicted of damaging federal property, in violation of 18 U. S. C. § 1361, of unlawfully storing explosive materials, in violation of 18 U. S. C. § 842 (j), and of conspiring to commit those offenses, in violation of 18 U. S. C. § 371.3 The evidence showed that respondent participated in the 1970 "Columbus Day bombings," including the bombing of the federal building at Rochester.4
Prior to the first trial, the Government, in accordance with § 3575 (a), filed with the trial court a notice alleging that respondent was a dangerous special offender. This notice recited the Government's intention to seek enhanced sentences on the racketeering counts in the event respondent was convicted at that trial.5 After respondent was found guilty, a dangerous special offender hearing, pursuant to § 3575 (b), was held. At the hearing, the Government relied upon the testimony adduced at the trial and upon public documents that attested to other convictions of respondent for the Columbus Day bombings, for loansharking, and for murder.6 The defense offered no evidence. It conceded the validity of the public records, but objected to any consideration of the murder offense because that conviction had been vacated on appeal.7
The District Court made findings of fact and ruled that respondent was a dangerous special offender within the meaning of the statute.8 The findings set forth respondent's criminal record and stated that that record revealed "virtually continuous criminal conduct over the past eight years, interrupted only by relatively brief periods of imprisonment in 1975, 1976 and 1977."9 The court found, in addition, that respondent's "criminal history, based upon proven facts, reveals a pattern of habitual and knowing criminal conduct of the most violent and dangerous nature against the lives and property of the citizens of this community. It further shows the defendant's complete and utter disregard for the public safety."10
In April, respondent was sentenced as a dangerous special offender under § 3575 to two 10-year terms on the racketeering counts upon which he was convicted at the earlier trial; the court specified that these sentences were to be served concurrently with each other and with the sentences imposed in March. The dangerous special offender charge and sentences thus resulted in additional punishment of only about a year.11 Respondent appealed the respective judgments of conviction to the Court of Appeals for the Second Circuit, and the United States sought review, under § 3576, of the sentences imposed upon respondent as a dangerous special offender.12 The Court of Appeals unanimously affirmed the judgments of conviction. By a divided vote, however, that court dismissed the Government's appeal on double jeopardy grounds.13 Because of the importance of the constitutional question, the Supreme Court granted the Government's petition for certiorari, which confined itself to that single issue.14
Whether 18 U.S.C. § 3576, authorizing the United States to appeal a sentence imposed upon a convicted dangerous special offender and to seek an increased sentence, violates the Double Jeopardy Clause of the Fifth Amendment?15
The Double Jeopardy Clause protects against multiple prosecutions and multiple punishments for the same offense.16 A sentence, however, does not carry the constitutional finality that attaches to an acquittal.17 Historical sentencing practices permitted increases during the same term of court.18 Precedents such as Bozza v. United States and North Carolina v. Pearce establish that the Clause imposes no absolute bar to increasing a sentence after conviction.19 When Congress provides statutory authority for government appeal of a sentence, the defendant has no legitimate expectation of finality.20 Limited appellate review on the existing record does not subject the defendant to the ordeal of a second trial.21
No. The statute authorizes appellate review of the sentence on the record without requiring a new trial or the presentation of new evidence of guilt.22 DiFrancesco had already been convicted at two trials and sentenced after a full dangerous special offender hearing where the court made specific findings based on his criminal history.23 The government's appeal under § 3576 seeks only to correct a potentially erroneous sentencing determination by the trial court, not to retry the underlying offenses.24 Because the appeal is limited to the sentencing record and does not subject DiFrancesco to the hazards of a second trial on guilt or innocence, it does not implicate the core protections of the Double Jeopardy Clause.
Furthermore, DiFrancesco was on notice that the dangerous special offender sentence was subject to government appeal, eliminating any expectation of finality in the initial sentence.25
Section 3576 does not violate the Double Jeopardy Clause.26
Related opinions on this issue
Joined by Justices White, Marshall, And Stevens
Justice Brennan dissented, maintaining that the Double Jeopardy Clause prohibits an appellate increase of a sentence as an unconstitutional multiple punishment.27 He argued that the sentencing proceeding involves factual adjudications analogous to a verdict of acquittal, so that imposition of a lesser sentence within the statutory range operates as an implicit finding that a greater sentence is unwarranted.28 Brennan rejected the majority's reliance on historical practice and parole revocation, asserting that the statute gives the government a second opportunity to obtain harsher punishment after the trial court has completed its adjudication.29
He warned that the logic of the majority opinion could extend to permit government appeals from acquittals themselves.30
Justice Stevens joined Brennan's dissent and separately emphasized Justice Harlan's powerful analysis of the double jeopardy issue in North Carolina v. Pearce.31 He noted that neither today nor in its opinion in North Carolina v. Pearce has the Court adequately responded to that analysis. Stevens observed that the rationale allowing a more severe sentence after retrial at the defendant's request has no application when the prosecutor seeks an increase without any new trial having occurred.32
He stressed that every consideration enunciated by the Court in support of the decision in Green applies with equal force to the situation at bar.33 Once a prisoner commences service of sentence, the Clause prevents a court from vacating the sentence and then imposing a greater one.34 Stevens concluded that the Court's response to this analysis is nothing more than a rather wooden extrapolation from a rationale that is wholly irrelevant to the important question presented by this case.35