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 De fender (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 A ttorney (Amy E. Pott er, Assistant United States Attorney, and Clinton J. Johnson, Unit ed States Attorney, on the brief), Office of the United States Attorn ey, Tulsa, Oklahoma, for Plaintiff-Appellee.

________________ _________________ Before HARTZ , BALDOCK , and BACHARACH , Circuit Judges.

________________ _________________ HARTZ , Circuit Judge.

________________ _________________
Defendant Joshua David Slin kard raises a single argument on appeal: that the district court plainly erred when it conclu sively announced his sentence before permitting FILED United States Court of Appeals Tenth Circuit 

### March 14, 2023 Christopher M. Wolpert Clerk of Court Appellate Case: 22-5018 Document: 010110825884 Date Filed: 03/14/2023 Page: 12 him to allocute. We agree. We hold that the court’s pre-allocution statement was a definitive announcement of sentence, in viola tion of Fed. R. Crim. P. 32(i)(4)(A)(ii) and our precedent. Exercising appellate jurisdicti on under 28 U.S.C. § 1291, we reverse and remand for resentencing.
I. BACKGROUND In 2011 Mr. Slinkard plead ed guilty in Oklahoma state court to child sex abuse, lewd molestation, and possessi on of child pornography. The st ate court sentenced him to 30 years in prison. But in May 2021 the State vacated Mr. S linkard’s conviction for lack of subject-matter jurisdiction, in accordan ce 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 No rthern District of Oklahoma on two counts of aggravated sexual abuse of a minor in Indian country, in vi olation 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 22 52(b)(2). He pleaded guilty on all three counts without the benef it of a plea bargain. Under 18 U.S.C. § 2241(c) the sentencing ra nge 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 re port (PSR) prepared for the court by the probation office computed Mr. Slinkard’s advisory guideline se ntence as life in prison, based on his total offense level of 43 and criminal-history category of II. Mr. Slinkard raised some Appellate Case: 22-5018 Document: 010110825884 Date Filed: 03/14/2023 Page: 23 objections to the PSR’s propos ed 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 th e 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 govern ment 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 de fendants. The court finds that this defendant is a repeated and danger ous sex offender. There is no way in good conscience that I could ever a llow 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 statem ent on behalf of the victim, the court imposed a sentence of two terms of life in pr ison 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 co difies a defendant’s right to speak at sentencing: “Before imposing sent ence, the [district] court must . . . address the defendant Appellate Case: 22-5018 Document: 010110825884 Date Filed: 03/14/2023 Page: 34 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 provid es a defendant with two rights: (1) “to make a statement in his own behalf” and (2) “to present any information in mitiga tion of punishment.” Green v. United States , 365 U.S. 301, 304 (1961) (plurality opinion) (i nternal quotation marks om itted). The second right incorporates the “opportun ity 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 a llocuted. We have recognized that a district court will “frequently approach sentencing with at least some idea of wh at [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 co urt to convey its tentative views on a proper sentence, a disclosure that may assist the de fendant 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 cour t’s announcement that it would allow “any statement [the defendant] would like to make to the court after it announced proposed Appellate Case: 22-5018 Document: 010110825884 Date Filed: 03/14/2023 Page: 45 findings of fact and a tentative sentence” (brackets and internal quotation marks omitted)). At the same time, however, offering the defendant the opport unity to allocute should not be an empty gestur e. Perhaps it is impossible to prevent the sentencing court from making up its mind befo re hearing from the defendant. But we can prohibit the court from conveying to the de fendant 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 defe ndant from making any statement at all,

see id. at 1137–38, or from speaking w ith 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 st ated that a court “violates th[e] right to a llocute when it definitively announces the defendant’s sentence before giving him an opportunity to sp eak, 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 an nouncing [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 defe ndant’s “right of allocution”); id. at 1266 (the court “must take steps to communicate effectively to the defendant that, th rough his statement, Appellate Case: 22-5018 Document: 010110825884 Date Filed: 03/14/2023 Page: 56 he has a meaningful opportunity to influe nce the sentence” (internal quotation marks omitted)). On occasion it may be a clos e call whether the court ha s conveyed that allocution will be to no avail. But not here. After de nying 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 pub lic or near any child.” R., Vol. III at 66 (emphasis added). The court’s next word s 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 ad ditional 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 i nvited 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 le xicographer would have to say that the court had made up its mind. The OED defines no way as “‘[u]nder no circumst ances’, ‘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 Dic tionary (3d ed. 2018). When the district court indicated that there was no way it could ever allow Mr. Slinkard to have contact with the pub lic, it unambiguously c onveyed that it coul d not allow him to leave prison “at any time; . . . on a ny 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 judg ment of this Court”— to announce a life Appellate Case: 22-5018 Document: 010110825884 Date Filed: 03/14/2023 Page: 67 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 op portunity 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 effectiv e in communicating a final decision. If its language did not contai n 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 performan ce 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 requ ire a ritualistic incantation to establish consider ation 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 inst ructed it to consider.” (internal quotation marks omitted)). It would be unreasonable of us to require them in th is context, to the detriment of a defendant’s otherwise mer itorious claim. We therefore decline the government’s invitation to hold that “m agic 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 c ontext 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 Appellate Case: 22-5018 Document: 010110825884 Date Filed: 03/14/2023 Page: 78 1448, 1451 (10th Cir. 1987) (en banc) (em phasis added), and “an [unambiguous] oral pronouncement of sentence from the benc h controls over [cont radictory] 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 ow ed in forfeiture based on oral pronouncement despite sile nce as to forfeiture in written judgmen t). But we need not decide whether the definitive stat ement by the district court amounted to imposition of the sentence, which has conseque nces 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 th e present context is whether the statement definitively communicat es 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 defin itively announcing Mr. Slinkard’s life sentence before allocution.
b. Plain error To prevail on this appeal, however, it is not enough for Mr. Slinka rd 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 pl ain, which (3) affects substantial rights, and Appellate Case: 22-5018 Document: 010110825884 Date Filed: 03/14/2023 Page: 89 which (4) seriously affects the fairness, in tegrity, 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 we ll-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 dist rict court’s statement was unambiguously definitive. Th e error is thus plain. “To satisfy the third prong of plain-e rror review, a defendant generally must demonstrate that an error was prejudicial, m eaning 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 (interna l quotation marks omitted). A “reasonable probability is a probability suffi cient 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 extr aordinary circumstance.” Id. at 1139. One obvious “extraordinary circumstance” is when the defendant has already received the lowest possible sentence, because there is a statutor y mandatory minimum or a specified term of imprisonment was included in a Fed. R. Cr im. P. 11(c)(1)(C) plea agreement already accepted by the sentencing court. See id. at 1140. Here, however, the government does Appellate Case: 22-5018 Document: 010110825884 Date Filed: 03/14/2023 Page: 910 not identify any extraordinary circumstance; it simply points out that Mr. Slinkard’s conduct was atrocious and the sentence wa s within the guideline range. But even “a sentence at the bottom of a Guidelines range does no t qualify as an exceptional circumstance justifying a deviation from the general rule.” Id. at 1141. And the possibility of a less severe sentence is obviou s 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 al locution error in this case satisfies the fourth pr ong of plain-error review because it “seriously affects the fairness, integrity, or public reputati on 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 therefor e “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 ap plies only “if the defendant was offered a meaningful opportunity to address the court and presen t 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 th at was the message delivered by the district Appellate Case: 22-5018 Document: 010110825884 Date Filed: 03/14/2023 Page: 1011 court when it stated th at 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 ligh tly. We “remand with instructions for assignment of a different judge only when th ere 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 prejudic e 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 putti ng out of his or her mind previouslyexpressed views or findings determin ed 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 pro portion to any gain in preserving the appearance of fairness. Id. All three factors weigh in favor of reassignm ent. The third is the easiest to assess. Assignment to another judge in this case w ill not impose a substa ntial additional burden on the judiciary. See United States v. Crooks , 997 F.3d 1273, 1280 n.10 (10th Cir. 2021). Appellate Case: 22-5018 Document: 010110825884 Date Filed: 03/14/2023 Page: 1112 As for the first factor, the words at sent encing 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 statemen ts 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 wh ite 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 erro r, reassigning on remand because, “[g]iven the sentencing judge’s repeated a nd unwavering statements dur ing the hearing that [the defendant] would be sentence d to a total of 120 months’ im prisonment, 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 th e second factor. Reassignmen t 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 ne utral, impartial administrator of justice.” United States v. Chapman , 915 F.3d 139, 147 (3d Cir. 20 19) (internal quotation marks omitted). Because the original judge conclusively declared his view of the proper sentence for Mr. Slinkard befo re inviting him to make a statement, the parties and the public might believe the judg e unwilling to consider Mr. S linkard’s statement on remand. Although we do not do ubt the original judge’s willingne ss to follow our instructions on Appellate Case: 22-5018 Document: 010110825884 Date Filed: 03/14/2023 Page: 1213 remand, we think reassignment will “preserve th e appearance of justice” and ensure that the fairness of future proc eedings 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 perspe ctive to avoid the appearance that the new sentence is tainted” by pr evious considerations).
III. CONCLUSION
We REVERSE the sentence imposed by the district court and REMAND for resentencing in accordan ce with this opinion. Appellate Case: 22-5018 Document: 010110825884 Date Filed: 03/14/2023 Page: 13