                                                                                                                           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Precedential or Non-Precedential: Non-Precedential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




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Recommended Citation
"USA v. Pineiro" (2003). 2003 Decisions. Paper 365.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/365


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                                              NOT PRECEDENTIAL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


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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




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