United States v. Slinkard

• Court: Court of Appeals for the Tenth Circuit
• Decided: June 20, 2024
• Docket: 23-5071
• Status: Unpublished

Opinion

Appellate Case: 23-5071 Document: 010111067405 Date Filed: 06/20/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT June 20, 2024 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 23-5071 (D.C. No. 4:21-CR-00266-GKF-1) JOSHUA SLINKARD, (N.D. Okla.)

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

Before PHILLIPS, KELLY, and FEDERICO, Circuit Judges. _________________________________

Defendant-Appellant Joshua David Slinkard pled guilty to two counts of

aggravated sexual abuse in Indian country, 18 U.S.C. §§ 1151, 1153, 2241(c), and one

count of possession of child pornography, 18 U.S.C. § 2252(a)(4), (b)(2). The district

court sentenced him to life in prison. On appeal, he argues the district court made two

errors affecting the duration of his sentence. We have jurisdiction under 28 U.S.C.

§ 1291 and 18 U.S.C. § 3742(a), and we affirm.

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 23-5071 Document: 010111067405 Date Filed: 06/20/2024 Page: 2

Background

The parties are familiar with the facts, so we need not restate them here other than

to discuss the relevant sentencing issues and the dispositive contentions. The presentence

report (PSR) recommended application of a two-point enhancement for using a computer

to persuade, induce, entice, or coerce a minor to engage in prohibited sexual conduct.

See U.S.S.G. § 2A3.1(b)(6)(B); PSR para. 20. Over Mr. Slinkard’s objection, the district

court applied the enhancement based on “testimony and evidentiary materials supportive

of the statements[.]” II R. 74. However, as the government now concedes, “no testimony

or evidentiary materials in the record at sentencing established the enhancement by a

preponderance of the evidence[,]” and application of the enhancement was error. Aplee.

Br. at 16.

Later, when analyzing the general sentencing factors under 18 U.S.C. § 3553(a),

the district court noted that Mr. Slinkard had “two prior convictions related to the sexual

abuse of children[.]” II R. 90. Mr. Slinkard did not object. Neither of Mr. Slinkard’s

convictions predate the conduct underlying his federal offense, so they are not “prior”

convictions for sentencing guidelines purposes. Aplt. Br. at 19–21. The government

assumes “the district court’s characterization of [Mr.] Slinkard’s criminal history during

its discussion of the § 3553(a) factors was plainly erroneous,” but argues that the error

did not affect his substantial rights. Aplee. Br. at 23–25.

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Discussion

Normally, we review the district court’s legal determinations de novo and its

factual findings for clear error. United States v. Jackson, 82 F.4th 943, 949 (10th Cir.

2023). Given the government’s concession of error, we proceed to consider harmless

error. On the computer enhancement, the government has the burden to demonstrate by a

preponderance that Mr. Slinkard’s substantial rights were not affected, see United States

v. Harrison, 743 F.3d 760, 764 (10th Cir. 2014); on the misstatement concerning his prior

convictions, Mr. Slinkard has the burden to demonstrate that the plain error affected his

substantial rights, see Greer v. United States, 593 U.S. 503, 508 (2021).

First, we agree with the government that the computer enhancement was harmless

because the guideline range was unaffected. It is undisputed that without the

enhancement, Mr. Slinkard’s total offense level would have been 46 instead of 48. And

under the Sentencing Guidelines table, offense levels of 43 and over are treated the same,

with the recommendation being a life sentence. U.S.S.G. ch. 5, pt. A. Thus, the

guidelines recommended life in prison regardless of whether the enhancement applied.

Nothing in the record convinces us that the error, or the prosecutor’s reliance upon it,

affected “the district court’s selection of the sentence imposed.” Williams v. United

States, 503 U.S. 193, 203 (1992).

Second, Mr. Slinkard has not demonstrated that the district court’s statement about

his convictions affected his substantial rights. The record is to the contrary and indicates

that the court clearly understood the nature of the convictions. The PSR correctly

recommended the addition of three criminal history points for Mr. Slinkard’s conviction

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in Mayes County, see U.S.S.G. § 4A1.1(a), and no addition of criminal history points for

Mr. Slinkard’s conviction in Tulsa County which formed “part of the instant offense[,]”

see id. § 4A1.2(a). PSR paras. 43–44. At sentencing, the district court correctly

recognized that the Mayes County sentence was “unrelated to the instant offenses.” II R.

77. Accordingly, the court adopted the PSR’s recommendation (making several changes

unrelated to Mr. Slinkard’s state convictions) and correctly calculated Mr. Slinkard’s

criminal history category. Judgment at 1. The district court clearly misspoke, and there

is no reasonable probability of a different outcome.

Mr. Slinkard argues that the cumulative effect of the above errors warrants

reversal, but we are not persuaded that the errors, considered together, prejudiced Mr.

Slinkard. See United States v. Rivera, 900 F.2d 1462, 1469–70 (10th Cir. 1990) (en

banc).

Entered for the Court

Paul J. Kelly, Jr. Circuit Judge