(concurring in the result on the government’s appeal).
I concur in Judge Smith’s opinion affirming DiFrancesco’s convictions, and agree that the government’s appeal must be dismissed. However, I would base that dismissal upon the non-constitutional ground of the inapplicability of 18 U.S.C. § 3576 in the circumstances of this case.
In United States v. Batchelder,—U.S.—,—, 99 S.Ct. 2198, 2199, 60 L.Ed.2d 755 (1979), the Supreme Court reiterated the maxim “that statutes should be construed to avoid constitutional questions,” going on to state:
“This ‘cardinal principle’ of statutory construction ... is appropriate only when an alternative interpretation is ‘fairly possible’ from the language of the statute. Swain v. Pressley, 430 U.S. 372, 378 n. 11, 97 S.Ct. 1224, 1228, 51 L.Ed.2d 411 (1977); see Crowell v. Benson, 285 U.S. 22, 62, 52 S.Ct. 285, 296, 76 L.Ed. 598 (1932); United States v. Sullivan, 332 U.S. 689, 693, 68 S.Ct. 331, 334, 92 L.Ed. 297 (1948); Shapiro v. United States, 335 U.S. 1, 31, 68 S.Ct. 1375, 1391, 92 L.Ed. 1787 (1948).”
While neither DiFrancesco nor the government raised the issue below, this “cardinal principle” of statutory construction permits a court to consider sua sponte whether the sentencing procedures in §§ 3575 and 3576 can be interpreted so as to avoid the constitutional question. Clearly such an interpretation is “fairly possible” from the language of the statute.
Governmental appeal of a sentence under § 3576 is available only in respect of an individual properly proceeded against in the district court as a “dangerous special offender” under § 3575(a). To come within the statute, the offender must be both “special” as defined by § 3575(e), and “dangerous” as defined by § 3575(f). DiFrancesco qualifies as “special” under § 3575(e)(3).1 He is “dangerous” under § 3575(f) if, and only if, “a period of confinement longer than that provided for such felony is required for the protection of the public from further criminal conduct by the defendant.” (emphasis added).
Section 3575(b) provides in pertinent part:
“If it appears by a preponderance of the information, including information sub*788mitted during the trial of such felony and the sentencing hearing and so much of the presentence report as the court relies upon, that the defendant is a dangerous special offender, the court shall sentence the defendant to imprisonment for an appropriate term not to exceed twenty-five years and not disproportionate in severity to the maximum term otherwise authorized by law for such felony. Otherwise it shall sentence the defendant in accordance with the law prescribing penalties for such felony.”
I construe the statute to provide the district judge with an additional capacity to impose a sentence of up to twenty-five years in cases where the underlying statute, standing alone, would not permit a term of such duration. Stated conversely, if the period of confinement provided for the felony by the underlying statute equals or exceeds twenty-five years, the dangerous special offender statute has no office to perform.2
If that is the proper interpretation of the dangerous special offender statute, it could not apply to DiFrancesco. DiFrancesco was prosecuted under the racketeering statute, 18 U.S.C. §§ 1961 et seq. He was convicted of a substantive offense under § 1962(c),3 and conspiracy under § 1962(d).4 The district court had the unquestioned power under the underlying statute, entirely without regard to the dangerous special offender statute, to sentence DiFrancesco to two consecutive 20 year terms, for a total of 40 years,5 or 15 years longer than the maximum term permitted *by § 3576. The district court’s discretionary power to impose consecutive, rather than concurrent, sen-*789tenees upon a defendant convicted on more than one count has been recognized for so long6 that it may fairly be regarded as inherent in the “period of confinement . provided for such felony” by the underlying statute. In urging sentencing judges to impose consecutive sentences where the circumstances permit, prosecutors can and frequently do make the same arguments (the defendant is dangerous, the public must be protected) that the dangerous special offender statute contemplates.
Such arguments could have been made in the case at bar, and a sentence passed in excess of the maximum permitted by § 3576, entirely on the basis of the underlying felony statute, and the district court’s well-established discretionary power to impose separate sentences on separate counts and make them run consecutively. I interpret §§ 3575 and 3576 to be inapplicable in those circumstances and would dismiss the government’s appeal on that ground, leaving the constitutional question for a case in which it cannot be avoided.7
. Section 3575 provides:
“(e) A defendant is a special offender for purposes of this section if—
“(3) such felony was, or the defendant committed such felony in furtherance of, a conspiracy with three or more other persons to engage in a pattern of conduct criminal under applicable laws of any jurisdiction, and the defendant did, or agreed that he would, initiate, organize, plan, finance, direct, manage, or supervise all or part of such conspiracy or conduct, or give or receive a bribe or use force as all or part of such conduct.”
The district court found that the conspiratorial elements of the crimes for which DiFrancesco was convicted satisfied the requirements of the statute. A.51-56.
. The legislative history is not voluminous on the point, but such indications as there are favor this interpretation. The Assistant Attorney General, Criminal Division, writing to the House Judiciary Committee on the wording of § 3575(b), and particularly on the point of whether the statute should read “shall” sentence or “may” sentence, said in part:
“We think that the term ‘shall’ as used here is appropriate. It conforms with the language generally used in the sentencing provisions of title 18, which has not previously been misconstrued as providing for a mandatory minimum sentence. Furthermore, inasmuch as an offender in any of the three defined categories is to be considered ‘dangerous’ only when the court fínds that a longer prison term than that which may be imposed for the felony of which he has been convicted is required to protect the public from further criminal conduct on his part, it would be incongruous for the court to fail to sentence a ‘dangerous’ offender to any prison term at all. Therefore, a provision that some such term of imprisonment ‘shall’ be imposed is appropriate for the purposes of the title. If a court finds that the usual maximum term for the felony, or any lesser term, is ail that should be imposed, by definition the court could not find the defendant to be a dangerous special offender. The proposed change from ‘shall’ to ‘may’ therefore, would serve no purpose.” 2 U.S.Code Cong. & Admin. News, pp. 4007, 4065-6 (1970) (emphasis added).
The House Report says of § 3575(f):
“Subsection (f) provides that a defendant is ‘dangerous’ if confinement longer than that ordinarily provided is required to protect the public from further crime by him.” Id. at 4039.
I construe the phrase “ordinarily provided” to mean the penalties provided by the underlying felony statute.
. That section provides:
“It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity or collection of unlawful debt.”
. That section provides:
“It shall be unlawful for any person to conspire to violate any of the provisions of subsections (a), (b), or (c) of this section.”
. 18 U.S.C. § 1963 provides in pertinent part: “(a) Whoever violates any provision of section 1962 of this chapter shall be fined not more than $25,000 or imprisoned not more than twenty years, or both, and shall forfeit to the United States (1) any interest he-has acquired or maintained in violation of section 1962, and (2) any interest in, security of, claim against, or property or contractual right of any kind affording a source of influence over, any enterprise which he has established, operated, controlled, conducted, or participated in the conduct of, in violation of section 1962.”
. See United States v. Daugherty, 269 U.S. 360, 363, 46 S.Ct. 156, 70 L.Ed. 309 (1926), adopting the reasoning of Neely v. United States, 2 F.2d 849, 852-3 (2d Cir. 1924), which in turn relied upon the statement in Ex parte DeBara, 179 U.S. 316, 322, 21 S.Ct. 110, 113, 45 L.Ed. 207 (1900) that a court, by exercising such sentencing options, “may express its views of the criminality of a defendant . . .”
I do not find in the legislative history of the special dangerous offender act specific reference to the trial judge’s ability to impose consecutive sentences in multiple count indictments, but the Congress must surely have been aware of so established a power.
. If my interpretation of the statute is wrong, and the constitutional question is unavoidably presented by this case, then I am in complete agreement with Judge Smith’s scholarly demonstration that the statute violates the double jeopardy clause of the fifth amendment.