United States v. Wilcox

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
November 27, 2017
FOR THE TENTH CIRCUIT
Elisabeth A. Shumaker
_________________________________ Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 16-4094
v. (D.C. No. 2:13-CR-00717-TS-PMW-1)
(D. Utah)
SIMMON LEE WILCOX,
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before HARTZ, BALDOCK, and BACHARACH, Circuit Judges.
_________________________________
We affirm the sentence of Defendant Simmon Lee Wilcox because he has not pre-
served 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 con-
spiring 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 This order and judgment is not binding precedent, except under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.
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 calcu-
lated 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 oxyco-
done. 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 calcu-
lation 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 ar-
gued that trial testimony showed that the conspiracy began before January 2011, making
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it appropriate to associate pills from that period with Defendant. The district court over-
ruled 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 equiva-
lent 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 argu-
ments. 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.
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We AFFIRM the district court’s sentence.
Entered for the Court
Harris L Hartz
Circuit Judge
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