Opinions of the United
2003 Decisions States Court of Appeals
for the Third Circuit
7-16-2003
USA v. Pineiro
Precedential or Non-Precedential: Non-Precedential
Docket No. 02-1958
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2003
Recommended Citation
"USA v. Pineiro" (2003). 2003 Decisions. Paper 365.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/365
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2003 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No: 02-1958
_____________
UNITED STATES OF AMERICA
v.
LUIS PINEIRO,
Appellant
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal Action No. 00-cr-00257-1)
District Judge: Honorable William H. Yohn
Submitted Under Third Circuit LAR 34.1(a)
on March 3, 2003
Before: ROTH, BARRY and FUENTES, Circuit Judges
(Opinion filed : June 30, 2003 )
OPINION
ROTH, Circuit Judge:
On September 28, 2001, Luis Pineiro was found guilty by a jury of conspiracy to
distribute more than five kilograms of cocaine in violation of 21 U.S.C. § 846. On
February 7, 2002, Pineiro was sentenced to 211 months imprisonment. Judgment was
entered on February 11, 2002. On March 26, 2002, Pineiro filed his Petition to File
Appeal Out of Time along with a Notice of Appeal. The District Court granted both the
petition and the notice and filed Pineiro’s Notice of Appeal as of March 26, 2002.
The Government challenges this appeal on the ground that it was untimely and
therefore we lack jurisdiction. We disagree. Our review of the relevant dates, pursuant
to Federal Rule of Appellate Procedure 4(b)(1)(A), convinces us that the appeal was
timely filed.
Pineiro raises two issues in his appeal. First, he contends that the District Court
erred in denying his request to transfer venue. Venue was proper in the Eastern District
of Pennsylvania. Nevertheless, Pineiro claims that the case should have been transferred
to the Southern District of Florida because that is where his witnesses reside. Location of
witnesses is one factor that a district court can consider when reviewing a request for
transfer of venue. See Platt v. Minnesota Mining & Manufacturing Co., 376 U.S. 240,
243-44 (1964). In this case, however, there were no other factors favoring transfer and
2
indeed several, including the location of the most of the conspiratorial activity and the
location of the government’s witness, favored holding the trial in the Eastern District of
Pennsylvania. We conclude that the District Court did not abuse its discretion in denying
the request for change of venue.
Pineiro also contends that he was illegally sentenced when the District Court found
by a preponderance of the evidence that he was responsible for 50 to 150 kilograms of
cocaine. He argues that, pursuant to Apprendi v. New Jersey, 530 U.S. 466 (2000), the
drug quantity attributable to him should have been decided by the jury. The jury did,
however, find that Pineiro had distributed more that five kilograms of cocaine in violation
of 21 U.S.C. § 846. Pursuant to § 841(b)(1)(A)(ii), the maximum statutory penalty for
this offense is life in prison. Since Pineiro’s sentence of 211 months imprisonment was
less that the statutory maximum, Apprendi is not applicable. See, e.g., United States v.
Williams, 235 F.3d 858, 862-64 (3d Cir. 2000), cert. denied, 122 S.Ct. 49 (2001).
For the above reasons, we will affirm the judgment of the District Court.
3
TO THE CLERK:
Please file the foregoing Opinion.
By the Court,
/s/ Jane R. Roth
Circuit Judge
4