Doug Berman points us to the two latest decisions where defendants receiving above guidelines sentences lost their appeals in federal court. Here’s the gist of it: defendants appealing higher than the maximum sentences “suggested” by the Federal Sentencing Guidelines continue to lose appeals. (On a side note, the Government almost always wins when it appeals below guidelines sentences, and "wins" higher sentences in those cases.)

In one of the cases, U.S. v. Bishop, the defendant had previously been convicted of aggravated kidnapping, burglary and rape. He was incarcerated from 1985 until 2003 on those charges, when he was released because DNA evidence proved that he was innocent of the rape charge. It was determined that he would have been released in 1995, but for the wrongful incarceration on the rape charge: an extra eight years he had to serve for an eventually reversed wrongful conviction.

The Federal District Court judge saw fit, however, to characterize the guidelines inability to further enhance his new sentence based on the overturned rape, as “a windfall from the standpoint of looking at his criminal history calculation”.

That’s right: the DNA exoneration that led to eight extra years of imprisonment was a “windfall”, because the advisory guidelines now understated “Mr. Bishop’s criminal history with respect to the seriousness of his convictions for the aggravated kidnapping and burglary charges”.

Isn’t it at least possible that had he been able in 1985 to prove his innocence on the rape charge that he may have been acquitted as well on the other charges stemming from that incident? OK, well let’s ignore that for now…

How about this one… shouldn’t some sort of downward departure be available for a guy that can demonstrably prove he unjustly served 8 extra years for his last offense?

Nope. The federal judiciary can decide that since your prior wrongful conviction is not taken into consideration by the guidelines, it can still be the basis for an upward departure… since, after all, it’s a “windfall” that the guidelines themselves don’t hold prior wrongful convictions against you.