UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

SIMMON LEE WILCOX, 

 Defendant - Appellant. 

No. 16-4094 

(D.C. No. 2:13-CR-00717-TS-PMW-1) 

(D. Utah) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before HARTZ, BALDOCK, and BACHARACH, Circuit Judges. 

_________________________________ 

We affirm the sentence of Defendant Simmon Lee Wilcox because he has not preserved arguments sufficient to show error in the calculation of his offense level. 

In 2013 a grand jury indicted Defendant and five others in an indictment alleging 

an oxycodone-distribution conspiracy. Five counts named Defendant: one count of conspiring to distribute oxycodone, see 21 U.S.C. §§ 841(a)(1) and 846, and four counts of 

 

*

 After examining the briefs and appellate record, this panel has determined unanimously 

that oral argument would not materially assist in the determination of this appeal. See

Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted 

without oral argument. This order and judgment is not binding precedent, except under 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. 

FILED 

United States Court of Appeals 

Tenth Circuit 

November 27, 2017

Elisabeth A. Shumaker 

Clerk of Court
2 

distributing oxycodone, see 21 U.S.C. § 841(a)(1). In 2016 a jury found Defendant guilty 

of the conspiracy count and one distribution count. 

The presentence investigation report (PSR) prepared by the probation office calculated Defendant’s guidelines sentence using the 2015 version of the Guidelines Manual. 

Defendant’s base offense level depended on the quantity of oxycodone attributed to him. 

The government had indicated that his conspiracy-related conduct concerned 81,010 pills, 

each containing 30 milligrams of oxycodone. This amounted to 2,430.3 grams of oxycodone. Under the guidelines equivalency table, one gram of oxycodone equals 6,700 

grams of marijuana, see USSG § 2D1.1 cmt. 8(D), so the marijuana-equivalent amount 

associated with Defendant was 16,283.01 kilograms. Defendant’s base offense level was 

therefore 34, which applies when the marijuana-equivalent range is “[a]t least 10,000 KG 

but less than 30,000 KG.” Id. § 2D1.1(c)(3). The PSR’s ultimate calculation was a total 

offense level of 36 and a criminal-history category of I, resulting in a sentencing range of 

188 to 235 months. 

In a memorandum responding to the PSR, Defendant’s sole objection to the calculation of his offense level was that the alleged conspiracy did not start until January 2011, 

so any pills associated with earlier time periods should not be included. Miscomputing 

the marijuana equivalent, he argued that “[t]his reduces the pill count by approximately 

8000 to a drug quantity reduction under the Marihuana Equivalency to less than 10,000 

kg.” R., Vol. 2 at 373. At his sentencing hearing Defendant’s sole pill-quantity argument 

again concerned the alleged 8,000 preconspiracy pills. In response the government argued that trial testimony showed that the conspiracy began before January 2011, making 
3 

it appropriate to associate pills from that period with Defendant. The district court overruled Defendant’s pill-count objection, and gave him a below-guidelines sentence of 100 

months. 

On appeal Defendant raises several challenges to pills predating and postdating 

January 2011, suggesting that collectively they cut enough pills from his total to bring the 

marijuana-equivalent amount of oxycodone associated with him below 10,000 kilograms, 

which would reduce his offense level by two levels. We note that the oxycodone equivalent of 10,000 kilograms of marijuana would be 1,492.54 grams of oxycodone, or about 

49,750 of the 30-milligram oxycodone pills. To reduce the number of pills enough to 

lower Defendant’s base offense level from 34 to 32, Defendant would need to show that 

31,260 of the 81,010 pills attributed to him should not have been attributed. 

We question whether Defendant’s arguments, even if fully credited, would reduce 

the number of pills attributed to him by 31,260. But we need not go through those arguments. He did not present to the sentencing court any challenge to pills distributed after 

January 2011, and our “general rule [is] that we do not address arguments presented for 

the first time on appeal.” United States v. Mora, 293 F.3d 1213, 1216 (10th Cir. 2002). 

As for the 8,000-pill argument that Defendant did preserve, the argument is unavailing 

because it would not reduce Defendant’s offense level even if it were successful. 
4 

We AFFIRM the district court’s sentence. 

Entered for the Court 

Harris L Hartz 

Circuit Judge