Appellate Case: 22-5018 Document: 010110825884 Date Filed: 03/14/2023 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS March 14, 2023
Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 22-5018
JOSHUA DAVID SLINKARD,
Defendant - Appellant. _________________________________
Appeal from the United States District Court for the Northern District of Oklahoma (D.C. No. 4:21-CR-00266-JFH-1) _________________________________
Kathleen Shen, Assistant Federal Public Defender (Virginia L. Grady, Federal Public Defender, with her on the briefs), Office of the Federal Public Defender, Denver, Colorado, for Defendant-Appellant.
Thomas Duncombe, Assistant United States Attorney (Amy E. Potter, Assistant United States Attorney, and Clinton J. Johnson, United States Attorney, on the brief), Office of the United States Attorney, Tulsa, Oklahoma, for Plaintiff-Appellee. _________________________________
Before HARTZ, BALDOCK, and BACHARACH, Circuit Judges. _________________________________
HARTZ, Circuit Judge. _________________________________
Defendant Joshua David Slinkard raises a single argument on appeal: that the
district court plainly erred when it conclusively announced his sentence before permitting Appellate Case: 22-5018 Document: 010110825884 Date Filed: 03/14/2023 Page: 2
him to allocute. We agree. We hold that the court’s pre-allocution statement was a
definitive announcement of sentence, in violation of Fed. R. Crim. P. 32(i)(4)(A)(ii) and
our precedent. Exercising appellate jurisdiction under 28 U.S.C. § 1291, we reverse and
remand for resentencing.
I. BACKGROUND
In 2011 Mr. Slinkard pleaded guilty in Oklahoma state court to child sex abuse,
lewd molestation, and possession of child pornography. The state court sentenced him to
30 years in prison. But in May 2021 the State vacated Mr. Slinkard’s conviction for lack
of subject-matter jurisdiction, in accordance with the United States Supreme Court’s
decision in McGirt v. Oklahoma, 140 S. Ct. 2452 (2020). Mr. Slinkard was then indicted
in the United States District Court for the Northern District of Oklahoma on two counts
of aggravated sexual abuse of a minor in Indian country, in violation of 18 U.S.C.
§§ 1151, 1153, and 2241(c), and one count of possession of child pornography, in
violation of 18 U.S.C. §§ 2252(a)(4) and 2252(b)(2). He pleaded guilty on all three
counts without the benefit of a plea bargain.
Under 18 U.S.C. § 2241(c) the sentencing range for each of Mr. Slinkard’s counts
of aggravated sexual abuse was 30 years to life. Under 18 U.S.C. § 2252(a)(4) and (b)(2)
the sentencing range for his child-pornography count was imprisonment up to 20 years.
The presentence investigation report (PSR) prepared for the court by the probation office
computed Mr. Slinkard’s advisory guideline sentence as life in prison, based on his total
offense level of 43 and criminal-history category of II. Mr. Slinkard raised some
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objections to the PSR’s proposed advisory guideline sentence, but they were rejected by
the probation office.
The district court held Mr. Slinkard’s sentencing hearing on March 3, 2022. After
adopting the factual recitations of the PSR and confirming Mr. Slinkard’s advisory
guideline sentence, the district court recited the sentencing factors set forth in 18 U.S.C.
§ 3553(a) and offered defense counsel the opportunity to be heard on the application of
those factors in Mr. Slinkard’s case. Defense counsel asked the court to consider an oral
motion for a downward variance based in part on Mr. Slinkard having already served 12
years in state prison. The government requested a life sentence.
The district court then said:
Based upon the information provided by the parties, I will not vary from the advisory guideline level as the factors fail to separate this defendant from the minerun of similarly situated defendants. The court finds that this defendant is a repeated and dangerous sex offender. There is no way in good conscience that I could ever allow this defendant to be among the public or near any child.
R., Vol. III at 66. The court asked Mr. Slinkard if he wished to make a statement, but he
declined. After the government made a statement on behalf of the victim, the court
imposed a sentence of two terms of life in prison and one term of 240 months, all to run
concurrently.
II. ANALYSIS
a. Definitive announcement of sentence before allocution
Federal Rule of Criminal Procedure 32 codifies a defendant’s right to speak at
sentencing: “Before imposing sentence, the [district] court must . . . address the defendant
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personally in order to permit the defendant to speak or present any information to
mitigate the sentence.” Fed. R. Crim. P. 32(i)(4)(A)(ii). This provides a defendant with
two rights: (1) “to make a statement in his own behalf” and (2) “to present any
information in mitigation of punishment.” Green v. United States, 365 U.S. 301, 304
(1961) (plurality opinion) (internal quotation marks omitted). The second right
incorporates the “opportunity to argue for a variance from the Guidelines range,” United
States v. Jarvi, 537 F.3d 1256, 1262 (10th Cir. 2008), regardless of whether the court has
already denied a motion to vary, see United States v. Mendoza-Lopez, 669 F.3d 1148,
1150, 1152 (10th Cir. 2012), overruled on other grounds by United States v. Bustamante-
Conchas, 850 F.3d 1130, 1143–44 (10th Cir. 2017) (en banc).
The right of allocution does not require the sentencing judge to have a totally open
mind until the defendant has allocuted. We have recognized that a district court will
“frequently approach sentencing with at least some idea of what [sentence it] intend[s] to
impose.” United States v. Valdez-Aguirre, 861 F.3d 1164, 1165 (10th Cir. 2017). Indeed,
it is not improper for the court to convey its tentative views on a proper sentence, a
disclosure that may assist the defendant in framing a statement. See Mendoza-Lopez, 669
F.3d at 1150, 1152 (it was not error for court to say before allocution that it was its
“intention to sentence within th[e] Guideline range” (emphasis added and internal
quotation marks omitted)); see also United States v. Theis, 853 F.3d 1178, 1182–83 (10th
Cir. 2017) (no plain error in sentencing court’s announcement that it would allow “any
statement [the defendant] would like to make to the court after it announced proposed
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findings of fact and a tentative sentence” (brackets and internal quotation marks
omitted)).
At the same time, however, offering the defendant the opportunity to allocute
should not be an empty gesture. Perhaps it is impossible to prevent the sentencing court
from making up its mind before hearing from the defendant. But we can prohibit the
court from conveying to the defendant that allocuting would be a waste of time. For the
sentencing court to do so not only discourages allocution but also can “subvert[] other
public values,” Bustamante-Conchas, 850 F.3d at 1142, by suggesting that the process is
unfair, see id. at 1136 (“courts must continue to be cautious to avoid the appearance of
dispensing assembly-line justice” (internal quotation marks omitted)).
Thus, we prohibit not only barring the defendant from making any statement at all,
see id. at 1137–38, or from speaking with respect to a particular aspect of the sentence,
see Mendoza-Lopez, 669 F.3d at 1150, 1152 (court prohibited defendant from arguing for
downward variance from guidelines range), but we have also stated that a court “violates
th[e] right to allocute when it definitively announces the defendant’s sentence before
giving him an opportunity to speak, and fails to communicate to the defendant that it will
genuinely reconsider the sentence in light of his remarks,” Theis, 853 F.3d at 1182
(emphasis added). See also United States v. Landeros-Lopez, 615 F.3d 1260, 1268 (10th
Cir. 2010) (“By definitively announcing [the defendant’s] sentence before providing him
with an opportunity to speak on his own behalf, the district court prematurely adjudged
his sentence” and “violated” the defendant’s “right of allocution”); id. at 1266 (the court
“must take steps to communicate effectively to the defendant that, through his statement,
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he has a meaningful opportunity to influence the sentence” (internal quotation marks
On occasion it may be a close call whether the court has conveyed that allocution
will be to no avail. But not here. After denying Mr. Slinkard’s motion for a downward
variance, the district judge stated: “There is no way in good conscience that I could ever
allow this defendant to be among the public or near any child.” R., Vol. III at 66
(emphasis added). The court’s next words were: “Will defendant and his counsel
approach the podium. Mr. Slinkard, do you wish to make a statement?” Id.
The government argues that the district court’s statement was merely tentative and
that it “conveyed a willingness to consider additional information before finalizing the
sentence.” Aplee. Br. at 9. This case is like Theis, it argues, because there the court stated
a tentative sentence and then invited the defendant to address the court on his own behalf.
See 853 F.3d at 1182–83. The comparison is too strained. We see nothing tentative in the
court’s remarks here. Even a lexicographer would have to say that the court had made up
its mind. The OED defines no way as “‘[u]nder no circumstances’, ‘absolutely not.’” No
Way, Oxford English Dictionary (3d ed. 2003). And it defines ever as “[a]t any time; . . .
on any occasion; in any circumstances.” Ever, Oxford English Dictionary (3d ed. 2018).
When the district court indicated that there was no way it could ever allow Mr. Slinkard
to have contact with the public, it unambiguously conveyed that it could not allow him to
leave prison “at any time; . . . on any occasion; in any circumstances.”
The government nonetheless argues that because the court did not use “magic
words”—such as “it is and will be the judgment of this Court”— to announce a life
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sentence, there was no definitive statement. Aplee. Br. at 10; see Landeros-Lopez, 615
F.3d at 1265, 1268 (quoting that language as violating the defendant’s right to allocution
because it “effectively communicated to [the defendant] that his sentence had already
been determined, and that he would not have a meaningful opportunity to influence that
sentence through his statements to the court”). We are not persuaded. The district court’s
“no way . . . ever” was at least as effective in communicating a final decision. If its
language did not contain magic words, it was nonetheless definitive.
It is rarely a fault for an appellate court to rely on common sense rather than magic
words in assessing the performance of a lower court. We do not require sentencing courts
to use magic words in supporting the sentences they hand down. See, e.g., United States
v. Kelley, 359 F.3d 1302, 1305 (10th Cir. 2004) (“We do not require a ritualistic
incantation to establish consideration of a legal issue, nor do we demand that the district
court recite any magic words to show us that it fulfilled its responsibility to be mindful of
the [§ 3553(a)] factors that Congress has instructed it to consider.” (internal quotation
marks omitted)). It would be unreasonable of us to require them in this context, to the
detriment of a defendant’s otherwise meritorious claim. We therefore decline the
government’s invitation to hold that “magic words” are required to constitute a
“definitive announcement,” nor will we feign ignorance of how this or any defendant
would necessarily interpret a statement by the court.
To call the district court’s statement “definitive” in the context of allocution
error is not to say that it was a binding, final imposition of sentence. “The sentence
orally pronounced from the bench is the sentence,” United States v. Villano, 816 F.2d
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1448, 1451 (10th Cir. 1987) (en banc) (emphasis added), and “an [unambiguous] oral
pronouncement of sentence from the bench controls over [contradictory] written
language” in the judgment, United States v. Barwig, 568 F.3d 852, 855 (10th Cir.
2009) (ellipsis and internal quotation marks omitted). See United States v. Dahda,
852 F.3d 1282, 1298 (10th Cir. 2017) (affirming amount owed in forfeiture based on
oral pronouncement despite silence as to forfeiture in written judgment). But we need
not decide whether the definitive statement by the district court amounted to
imposition of the sentence, which has consequences unrelated to allocution, such as
starting the 14-day clock for correction of “arithmetical, technical, or other clear
error” under Fed. R. Crim. P. 35(a). The guiding principle in the present context is
whether the statement definitively communicates to the defendant that allocution is
futile, thereby depriving the defendant of a meaningful opportunity to address the
court. The district court’s statement to Mr. Slinkard, even if not a “sentence,”
communicated that futility.
We therefore must hold that the district court erred in definitively announcing Mr.
Slinkard’s life sentence before allocution.
b. Plain error
To prevail on this appeal, however, it is not enough for Mr. Slinkard to point to an
error by the district court. Because he did not object below to the district court’s pre-
allocution statement, he must demonstrate plain error. See United States v. Starks, 34
F.4th 1142, 1156 (10th Cir. 2022). To satisfy the plain-error standard for reversal, he
must demonstrate: “(1) error, (2) that is plain, which (3) affects substantial rights, and
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which (4) seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” Id. at 1157 (internal quotation marks omitted).
We have established above that there was error in Mr. Slinkard’s sentencing. We
need not dwell long on the other requirements. For error to be “plain” it must be beyond
“reasonable dispute” that it is “contrary to well-settled law” of this court or the United
States Supreme Court. Id. (internal quotation marks omitted). Our precedent prohibits the
definitive or conclusive announcement of a defendant’s sentence before he allocutes. See
Valdez-Aguirre, 861 F.3d at 1165; Theis, 853 F.3d at 1182; Mendoza-Lopez, 669 F.3d at
1151; Landeros-Lopez, 615 F.3d at 1268. The district court’s statement was
unambiguously definitive. The error is thus plain.
“To satisfy the third prong of plain-error review, a defendant generally must
demonstrate that an error was prejudicial, meaning that there is a reasonable probability
that, but for the error claimed, the result of the proceeding would have been different.”
Bustamante-Conchas, 850 F.3d at 1138 (internal quotation marks omitted). A
“reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Id. (internal quotation marks omitted). We have determined that “a defendant
who shows he has been denied the right to allocute has met his burden of demonstrating
prejudice absent some extraordinary circumstance.” Id. at 1139. One obvious
“extraordinary circumstance” is when the defendant has already received the lowest
possible sentence, because there is a statutory mandatory minimum or a specified term of
imprisonment was included in a Fed. R. Crim. P. 11(c)(1)(C) plea agreement already
accepted by the sentencing court. See id. at 1140. Here, however, the government does
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not identify any extraordinary circumstance; it simply points out that Mr. Slinkard’s
conduct was atrocious and the sentence was within the guideline range. But even “a
sentence at the bottom of a Guidelines range does not qualify as an exceptional
circumstance justifying a deviation from the general rule.” Id. at 1141. And the
possibility of a less severe sentence is obvious when one observes that Mr. Slinkard’s
state-court sentence for essentially the same misconduct was 30 years.
Finally, our precedents compel the conclusion that the allocution error in this case
satisfies the fourth prong of plain-error review because it “seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” Starks, 34 F.4th at 1157 (internal
quotation marks omitted). We have stated that “[e]ven in instances in which a
significantly lesser sentence is unlikely, a denial of allocution subverts . . . public values.”
Bustamante-Conchas, 850 F.3d at 1142. It is therefore “rare” that “an allocution error
does not satisfy the fourth prong.” Id. To be sure, “remand may not be warranted if a
defendant was not wholly denied the opportunity to allocute.” Id. at 1143. But, as the
government recognizes, this exception applies only “if the defendant was offered a
meaningful opportunity to address the court and present mitigating circumstances.” Id.;
see Theis, 853 F.3d at 1182–83. We do not think that in this context an opportunity is
meaningful if failure is foreordained. And that was the message delivered by the district
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court when it stated that there was no way it could sentence Mr. Slinkard to less than life
imprisonment.
c. Proceedings on remand
There is one remaining issue. We think it prudent to order that resentencing be
conducted by another judge.
This is a course we do not take lightly. We “remand with instructions for
assignment of a different judge only when there is proof of personal bias or under
extreme circumstances.” Mitchell v. Maynard, 80 F.3d 1433, 1448 (10th Cir. 1996). We
are confident that the views of the original judge were based on a conscientious, unbiased
view of the facts without any personal prejudice against Mr. Slinkard. But “it is not solely
the reality of actual bias or prejudice but also the appearance of impropriety that we must
guard against.” Id. at 1450.
In the absence of bias we consider three factors in determining whether
reassignment is warranted:
(1) whether the original judge would reasonably be expected upon remand to have substantial difficulty in putting out of his or her mind previously- expressed views or findings determined to be erroneous or based on evidence that must be rejected, (2) whether reassignment is advisable to preserve the appearance of justice, and (3) whether reassignment would entail waste and duplication out of proportion to any gain in preserving the appearance of fairness.
Id.
All three factors weigh in favor of reassignment. The third is the easiest to assess.
Assignment to another judge in this case will not impose a substantial additional burden
on the judiciary. See United States v. Crooks, 997 F.3d 1273, 1280 n.10 (10th Cir. 2021).
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As for the first factor, the words at sentencing suggest such a strong personal belief
regarding what punishment is appropriate that the judge may have considerable difficulty
changing his mind on remand. See United States v. Evans, 677 F. App’x 469, 475 (10th
Cir. 2017) (“we could reasonably expect our disposition to cause difficulty on remand”
given original judge’s statements that it was unfortunate that the computation of financial
loss (for the purpose of assessing the offense level for the fraud committed) could not be
higher and that Americans “do not take white collar crime seriously enough” (internal
quotation marks omitted)); United States v. Avery, 807 F. App’x 74, 76 (2d Cir. 2020)
(after vacating sentence for allocution error, reassigning on remand because, “[g]iven the
sentencing judge’s repeated and unwavering statements during the hearing that [the
defendant] would be sentenced to a total of 120 months’ imprisonment, we believe that
the judge would have substantial difficulty in putting such a view out of her mind”
(internal quotation marks omitted)).
Most important here is the second factor. Reassignment will help preserve the
appearance of justice, which is an essential purpose of the right of allocution. “We are
mindful . . . of the imperative to preserve not only the reality but also the appearance of
the proper functioning of the judiciary as a neutral, impartial administrator of justice.”
United States v. Chapman, 915 F.3d 139, 147 (3d Cir. 2019) (internal quotation marks
omitted). Because the original judge conclusively declared his view of the proper
sentence for Mr. Slinkard before inviting him to make a statement, the parties and the
public might believe the judge unwilling to consider Mr. Slinkard’s statement on remand.
Although we do not doubt the original judge’s willingness to follow our instructions on
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remand, we think reassignment will “preserve the appearance of justice” and ensure that
the fairness of future proceedings is beyond doubt. See United States v. Cozad, No. 22-
3050, 2022 WL 2288719, at *3 (10th Cir. June 24, 2022) (“it would be beneficial for
another district judge to apply a fresh perspective to avoid the appearance that the new
sentence is tainted” by previous considerations).
III. CONCLUSION
We REVERSE the sentence imposed by the district court and REMAND for
resentencing in accordance with this opinion.