PUBLISH 

UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

JOSHUA DAVID SLINKARD, 

 Defendant - Appellant. 

No. 22-5018 

_________________________________ 

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 

FILED 

United States Court of Appeals 

Tenth Circuit 

March 14, 2023

Christopher M. Wolpert 

Clerk of Court

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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. BustamanteConchas, 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 

omitted)). 

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 preallocution 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 previouslyexpressed 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. 

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