Even the Seventh Circuit itself, however, seemed uncomfortable with the outcome. Judge Frank Easterbrook, a prominent conservative jurist, all but signaled the justices to take up the matter in his majority opinion. “Despite this clear precedent, McClinton’s contention is not frivolous,” he wrote for the three-judge panel. “It preserves for Supreme Court review an argument that has garnered increasing support among many circuit court judges and Supreme Court justices, who in dissenting and concurring opinions, have questioned the fairness and constitutionality of allowing courts to factor acquitted conduct into sentencing calculations.”
Easterbrook’s reference to Supreme Court justices was a nod at a dissenting statement written by Antonin Scalia in 2014. In Jones v. United States, the court declined to review a lower court decision that would have allowed it to reconsider acquitted-conduct sentencing under the Sixth Amendment instead of the Seventh. Scalia, joined by Justices Ruth Bader Ginsburg and Clarence Thomas, said they should have heard the case, pointing out that the court finally had a non-hypothetical example before it. “This has gone on long enough,” he wrote.
Another justice who may be unfavorable toward the practice is Justice Brett Kavanaugh. While serving on the D.C. Circuit in 2018, he dissented in a case involving acquitted-conduct sentencing on unrelated grounds. At the same time, he nodded toward the inherent flaws with acquitted-conduct sentencing while noting that he was bound by precedent as a lower court judge.