61 F.4th 1290
10th Cir.2023Background:
- Slinkard pled guilty in Oklahoma state court in 2011 to child sexual offenses and possession of child pornography; state sentence was 30 years but the conviction was vacated after McGirt v. Oklahoma.
- He was federally indicted and pleaded guilty to two counts of aggravated sexual abuse (each 30 years to life) and one count of possession of child pornography (up to 20 years); no plea agreement.
- The PSR calculated an advisory Guidelines sentence of life (total offense level 43, CHC II); government asked for life; defense sought a downward variance noting 12 years already served in state prison.
- At sentencing the district judge adopted the PSR and, after rejecting the variance, stated, "There is no way in good conscience that I could ever allow this defendant to be among the public or near any child," then asked if Slinkard wished to speak; Slinkard declined and the court imposed two life terms and 240 months, concurrent.
- Slinkard appealed, arguing the court plainly erred by definitively announcing sentence before allocution in violation of Fed. R. Crim. P. 32(i)(4)(A)(ii); the Tenth Circuit reversed and remanded for resentencing, recommending reassignment to a different judge.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court definitively announced sentence before allocution in violation of Rule 32 | Court’s statement was tentative; it signaled willingness to consider additional information and did not use "magic words," so no definitive announcement | Judge’s "no way... ever" statement unmistakably communicated finality and rendered allocution futile, violating Rule 32 | Court held the statement was definitive and violated the right to allocute |
| Whether the error was plain under plain-error review | No extraordinary circumstances; sentence within Guidelines and conduct egregious, so any error not reversible | Precedent makes definitive pre-allocution announcements plain error; denial of allocution is presumptively prejudicial absent extraordinary circumstances | Error was plain; prejudice presumed; plain-error prongs satisfied |
| Whether "magic words" are required to show a definitive announcement | Absence of formal phrasing suggests no definitive announcement | Any unambiguous language conveying finality suffices to show allocution denial | Court rejected a "magic words" requirement; context and plain language can show definitiveness |
| Whether resentencing should be before a different judge | Original judge can follow instructions on remand; reassignment unnecessary | Appearance of impropriety and difficulty putting prior statements out of mind justify reassignment | Reassignment ordered to preserve appearance of justice and avoid doubt about fairness |
Key Cases Cited
- Green v. United States, 365 U.S. 301 (U.S. 1961) (recognizes defendant’s right to speak and present mitigating information at sentencing)
- United States v. Jarvi, 537 F.3d 1256 (10th Cir. 2008) (allocution includes opportunity to argue for a variance)
- United States v. Mendoza-Lopez, 669 F.3d 1148 (10th Cir. 2012) (allocution must be meaningful; court cannot preclude variance arguments)
- United States v. Bustamante-Conchas, 850 F.3d 1130 (10th Cir. 2017) (denial of allocution generally presumed prejudicial absent extraordinary circumstances)
- United States v. Valdez-Aguirre, 861 F.3d 1164 (10th Cir. 2017) (court may have tentative views but cannot definitively announce sentence before allocution)
- United States v. Theis, 853 F.3d 1178 (10th Cir. 2017) (definitive announcement of sentence before allocution violates right to allocute)
- United States v. Landeros-Lopez, 615 F.3d 1260 (10th Cir. 2010) (premature definitive sentencing statement violates allocution right)
- United States v. Villano, 816 F.2d 1448 (10th Cir. 1987) (oral pronouncement from the bench is the controlling sentence)
- United States v. Barwig, 568 F.3d 852 (10th Cir. 2009) (oral sentence controls over contradictory written judgment)
- United States v. Dahda, 852 F.3d 1282 (10th Cir. 2017) (affirms primacy of oral sentencing pronouncement)
- United States v. Starks, 34 F.4th 1142 (10th Cir. 2022) (explains plain-error standard in sentencing context)
- Mitchell v. Maynard, 80 F.3d 1433 (10th Cir. 1996) (standards for reassignment of a different judge on remand)
- United States v. Crooks, 997 F.3d 1273 (10th Cir. 2021) (reassignment will not necessarily impose substantial burden on judiciary)
- United States v. Chapman, 915 F.3d 139 (3d Cir. 2019) (preserving the appearance of impartial justice is an essential purpose of allocution)