PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT
              _________________

                   No. 17-2079
                _________________


          UNITED STATES OF AMERICA

                          v.

            ZENAIDO RENTERIA, JR.,

                             Appellant
                _________________

   On Appeal from the United States District Court
        for the Eastern District of Pennsylvania
              (D.C. No. 2:15-cr-00241-002)
   District Judge: Hon. Nitza I. Quinones Alejandro
                  _________________

                Argued April 18, 2018

Before: GREENAWAY, JR., RENDELL, and FUENTES,
                Circuit Judges

             (Filed: September 11, 2018)
Susan M. Lin, Esq. [Argued]
Kairys Rudovsky Messing & Feinberg
718 Arch Street
Suite 501 South
Philadelphia, PA 19106

       Attorney for Appellant

Louis D. Lappen, United States Attorney
Bernadette A. McKeon, Esq. [Argued]
Andrew J. Schell, Esq.
Robert A. Zauzmer, Esq.
Office of the United States Attorney
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106

       Attorneys for Appellee

                     _________________

                 OPINION OF THE COURT
                    _________________

FUENTES, Circuit Judge.

        Petitioner Zenaido Renteria was involved in a drug
trafficking conspiracy that conducted business in Pennsylvania
and California. He was convicted at trial in the Eastern District
of Pennsylvania of one count of conspiracy to distribute 500
grams or more of methamphetamine and one kilogram or more
of heroin in violation of 21 U.S.C. § 846. He was sentenced to




                                2
153 months’ imprisonment and five years of supervised
release.

       Renteria now appeals, arguing that the Eastern District
of Pennsylvania was not a proper venue for his case because it
was not reasonably foreseeable to him that conduct in
furtherance of the conspiracy would have occurred there. He
also claims that the District Court gave incorrect jury
instructions and that the District Court erred in its calculation
of his offense level under the Sentencing Guidelines
(“Guidelines”). Because we choose not to adopt a “reasonable
foreseeability” test for venue, we conclude that the Eastern
District of Pennsylvania was an appropriate venue for
Renteria’s case. We also conclude that the District Court’s jury
instructions were proper and that it did not err in its Guidelines
calculation. Accordingly, we will affirm in all respects.

                                    I.

           A. The Investigation

       In May 2015, Homeland Security Investigations Special
Agent Jeffrey Kuc posed undercover as a methamphetamine
and heroin trafficker in southeastern Pennsylvania. In this role,
Kuc communicated over the phone with two men, known to
him as Cejas and Juan, who used telephone numbers with
Mexican country codes. From his location in the Eastern
District of Pennsylvania, Kuc arranged for Cejas and Juan to
send two kilograms of methamphetamine to a mailbox in
Springfield, Pennsylvania. The men agreed that Kuc would
pay $30,000 for the drugs. They also agreed that after he
received the methamphetamine, Kuc would deposit $2,000 into
a bank account provided by Cejas. Kuc would then pay the




                                3
remaining $28,000 in cash when he traveled to California
shortly thereafter to purchase heroin and more
methamphetamine.

       Kuc received the methamphetamine shipment on May
29, 2015, and he deposited $2,000 in an agreed-upon bank
account the following day in Philadelphia. On June 3, 2015,
Kuc traveled to Los Angeles and spoke to Cejas, who informed
him that he would direct his contact in the area to reach out to
Kuc.

       Later that day, Kuc received a phone call from Renteria.
After some negotiating, the two men formulated a plan to
exchange methamphetamine and heroin for $146,500—the
value of the new drugs Kuc would receive plus the $28,000 he
owed for the prior Pennsylvania methamphetamine shipment.
The next day, the men discussed a meeting time, and Renteria
expressed that he was rushing to prepare for the transaction,
explaining, “they just told me this yesterday.”1 Later, the men
met at a fast food restaurant in Huntington Beach, California.
There, after Kuc saw the drugs and gave other agents a pre-
arranged signal, Renteria was arrested.

            B. District Court Proceedings

       Within a week of Renteria’s arrest, a grand jury
convened in the Eastern District of Pennsylvania returned a
two-count indictment that charged him with conspiracy to
distribute 500 grams or more of methamphetamine and one
kilogram or more of heroin in violation of 21 U.S.C. § 846
(“count one”) and possession with intent to distribute 

.




                               4
grams or more of methamphetamine and one kilogram or more
of heroin in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C.
§ 2 (“count two”).

       Renteria, a California resident, filed a Motion to Change
Venue requesting that his case be transferred to California, but
the Motion was denied by the District Court.2 He then moved
to dismiss both counts one and two for lack of venue. The
Government conceded that count two should be dismissed, but
the District Court denied the motion with respect to count one.
       Renteria proceeded to trial on count one in the Eastern
District of Pennsylvania. At trial, the District Court instructed
the jury regarding venue, explaining in part:

       The government does not need to prove that the
       defendant himself was present in this district,
       instead [venue] can be established in this district
       if a co-conspirator has committed an act in
       furtherance of the conspiracy here even if the
       defendant did not know or did not reasonably
       foresee that the act occurred or would occur in
       this district.3

       Renteria was convicted. Prior to sentencing, the
Probation Office calculated Renteria’s Guidelines range to be
151 to 188 months of imprisonment. In calculating the
Guidelines range, the Probation Office determined Renteria’s
offense level by considering the quantities of heroin and

2
  Renteria is not appealing the denial of his Motion to Change
Venue because, as he admits in his briefing, the Motion did not
include the proper law or relevant facts.
3
  

                               5
methamphetamine that Renteria attempted to deliver to Kuc in
California, as well as the quantity of methamphetamine
shipped to Kuc in Springfield, Pennsylvania. Ultimately, after
accounting for Renteria’s minor role in the conspiracy, the
Probation Office determined that Renteria had a total offense
level of 34 and was in criminal history category I.

       At Renteria’s sentencing hearing, the District Court
adopted the Probation Office’s Guidelines calculation and
explained that the applicable Guidelines range was 151 to 188
months of imprisonment. Neither side objected, although the
Government contended that a reduction for being a minor
participant should not be given. The District Court imposed a
sentence of 153 months’ imprisonment and five years’
supervised release. Soon thereafter, Renteria appealed.4

                                  II.

       We will address each of Renteria’s three issues on
appeal in turn, beginning with venue.5 Although Renteria
urges us to adopt a reasonable foreseeability test to analyze
venue in conspiracy cases, we decline to do so.




4
  The District Court had jurisdiction under 18 U.S.C. § 3231.
We have jurisdiction under 28 U.S.C. § 1291 and under 18
U.S.C. § 3742(a).
5
  Our review of the District Court’s decision regarding venue
is plenary. United States v. Auernheimer, 

, 532
(3d Cir. 2014). The Government must prove that venue is
proper by a preponderance of the evidence. 

                              6
        Venue is a concept that stems from the Constitution
itself, which “twice safeguards the defendant’s venue right.”6
First, Article III mandates that “[t]he Trial of all Crimes . . .
shall be held in the State where the said Crimes shall have been
committed.”7 Second, the Sixth Amendment reiterates, “[i]n
all criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial, by an impartial jury of the State and
district wherein the crime shall have been committed.”8 The
Federal Rules of Criminal Procedure incorporate the
Constitution’s conception of venue in Rule 18, which explains
that the Government “must prosecute an offense in a district
where the offense was committed.”9

       As we have previously explained, “Congress may
prescribe specific venue requirements for particular crimes.”10
In that vein, in 18 U.S.C. § 3237(a), Congress provided that
continuing offenses, including conspiracy, can be “prosecuted
in any district in which such offense was begun, continued, or
completed.”11 We have further clarified that “[i]n addition,
venue can be established wherever a co-conspirator has
committed an act in furtherance of the conspiracy.”12

      It is in this legal landscape that Renteria argues that
venue was not properly laid in the Eastern District of
Pennsylvania in his case. On a broad level, Renteria urges us

6
  United States v. Cabrales, 

, 6 (1998).
7
  U.S. Const. art III, § 2, cl. 3.
8
  

9
  Fed. R. Crim. P. 18.
10
   

.
11
   18 U.S.C. § 3237(a) (2012).
12
   United States v. Perez, 

, 329 (3d Cir. 2002).




                               7
to conclude that in order to establish venue in a particular
district in a conspiracy case under § 3237(a), it must have been
reasonably foreseeable to the defendant that an act in
furtherance of the conspiracy would have occurred in the
district.     He claims that adopting such a reasonable
foreseeability test is required by the Constitution.

        Assuming that we adopt a reasonable foreseeability test,
Renteria contends that the Eastern District of Pennsylvania was
not a proper venue because “it was not reasonably foreseeable
to [him] that an act in furtherance of the conspiracy would be
committed [there].”13 He asserts that he could not have
foreseen the events that took place in Pennsylvania because he
did not join the conspiracy until June 3, 2015—after his co-
conspirators had directed phone calls and shipped
methamphetamine to Kuc in Pennsylvania—and because all of
his actions occurred in California.

       Whether to adopt a reasonable foreseeability test to
determine if venue has been laid properly in a conspiracy case
under § 3237(a) is an issue of first impression for our Court.
Although the Second Circuit has concluded that a reasonable
foreseeability test is required to establish venue,14 the Ninth
Circuit has rejected the test in the context of § 3237(a), 15 and
the Fourth Circuit has rejected it in the context of a similar


13
   Appellant’s Br. at 13.
14
   United States v. Svoboda, 

, 483 (2d Cir. 2003)
(adopting a reasonable foreseeability test).
15
   United States v. Gonzalez, 

, 1226 (9th Cir.
2012) (“Simply put, section 3237(a) does not require
foreseeability to establish venue for a continuous offense.”).




                               8
venue statute, 15 U.S.C. § 78aa.16 We now decline to adopt a
reasonable foreseeability test as well.

        To begin, we conclude that we need not adopt a
reasonable foreseeability test because neither the text of the
Constitution nor of § 3237(a) requires it. In fact, the
Constitution and § 3237(a) focus solely on where the offense
occurred and do not even reference foreseeability.17 As the
Fourth Circuit explained in United States v. Johnson, albeit in
connection with the venue statute for securities offenses,18 “[i]f
Congress had wanted to limit venue to those districts where the
defendant could have reasonably foreseen [the] criminal
conduct taking place, it could have easily done so. Instead, it
enacted a broad venue provision, one that lacked any reference
to a defendant’s mental state or predictive calculus.”19

      Just as we conclude that the Constitution and § 3237(a)
do not explicitly provide for a reasonable foreseeability

16
   United States v. Johnson, 

, 527 (4th Cir. 2007)
(rejecting a reasonable foreseeability test in the context of 15
U.S.C. § 78aa, the venue statute for securities offenses). We
also note that the Sixth Circuit declined to adopt a reasonable
foreseeability test to establish venue under § 3237(a) in an
unpublished opinion. United States v. Castaneda, 315 F.
App’x 564, 570 (6th Cir. 2009) (“We decline to adopt
foreseeability as an additional element of venue at this time.”).
17
   See U.S. Const. art III, § 2, cl. 3; 

18 U.S.C. §
3237(a).
18
   15 U.S.C. § 78aa provides that for securities offenses, “[a]ny
criminal proceeding may be brought in the district wherein any
act or transaction constituting the violation occurred.”
19
   

.




                                9
requirement, we also choose not to imply one. As we have
previously explained, venue is “an element more akin to
jurisdiction than to the substantive elements of the crime,”20
and “mens rea requirements typically do not extend to the
jurisdictional elements of a crime.”21 Like the Ninth Circuit in
rejecting a reasonable foreseeability test in United States v.
Gonzalez, we see no reason to diverge from these principles
here.22

       In addition, the fact that the Second Circuit has adopted
a reasonable foreseeability requirement to establish venue does
not persuade us that we should do so. In United States v.
Svoboda,23 the Second Circuit examined two cases, United
States v. Kim24 and United States v. Bezmalinovic,25 and
concluded that such cases demonstrate that “venue is proper in

20
   

(quoting United States v. Massa, 

, 530 (7th Cir. 1982)).
21
   United States v. Moyer, 

, 208 (3d Cir. 2012)
(quoting United States v. Cooper, 

, 664 (4th Cir.
2007)).
22
   

(“[V]enue is similar in nature to
a jurisdictional element, and typically lacks any sort of explicit
knowledge or foreseeability prerequisite.” (quoting 

)). See also 

(“We are
especially reluctant to imply a foreseeability requirement in
light of the fact that it ‘is well settled that mens rea
requirements typically do not extend to the jurisdictional
elements of a crime.’” (quoting United States v. Cooper, 

, 664 (4th Cir. 2007)).
23
   

.
24
   

(2d Cir. 2001).
25
   

(S.D.N.Y. 1997).




                               10
a district where (1) the defendant intentionally or knowingly
causes an act in furtherance of the charged offense to occur in
the district of venue or (2) it is foreseeable that such an act
would occur in the district of venue.”26 Significantly, however,
neither Svoboda nor Kim nor Bezmalinovic actually explains
why reasonable foreseeability is required to establish venue
under the Constitution. Rather, the cases seem to derive the
reasonable foreseeability test from a generous reading of prior
Second Circuit precedent.27 In fact, even the Second Circuit
itself has recently acknowledged that “[o]ther Circuits have not
adopted such a requirement” and admitted that Svoboda, its
“seminal case” on the issue, “identified a foreseeability
requirement without extensive analysis.”28 Accordingly, the
Second Circuit’s opinions do not persuade us to adopt a
reasonable foreseeability test.

       We are also not convinced by Renteria’s argument that
a reasonable foreseeability test is necessary to comply with the
Constitution’s venue provisions because it promotes the policy
behind them—protecting “against the unfairness and hardship
involved when an accused is prosecuted in a remote place.”29
“[U]nfairness is generally not a concern when a defendant is
tried in a district ‘wherein the crime shall have been




26
   

.
27
   See 

; 

.
28
   United States v. Kirk Tang Yuk, 

, 69 n.2 (2d Cir.
2018).
29
   

(quoting United States v.
Cores, 

, 407 (1958)).




                              11
committed.’”30 Thus, because § 3237(a) limits venue to “any
district in which such offense was begun, continued, or
completed,” it is unnecessary for us to adopt a reasonable
foreseeability test to protect the accused.31 Furthermore,
defendants who wish to be prosecuted in a venue other than the
one the Government has chosen can file a motion to transfer
venue under Rule 21 of the Federal Rules of Criminal
Procedure, which provides for transfers for both prejudice and
convenience.32 This further convinces us that we need not
adopt a reasonable foreseeability test to ensure that defendants
are not being prosecuted in venues that are unfair to them.33

       For the foregoing reasons, we decline to adopt a
reasonable foreseeability requirement to establish venue in
conspiracy cases under § 3237(a). Accordingly, we conclude
that the Eastern District of Pennsylvania was a proper venue
for Renteria’s case. Although Renteria himself did not act in
the Eastern District of Pennsylvania or direct any of his actions

30
   United States v. Rommy, 

, 119 (2d Cir. 2007)
(quoting U.S. Const. amend. VI).
31
   18 U.S.C. § 3237(a)
32
   Fed. R. Crim. P. 21. As discussed above, Renteria filed a
motion under Rule 21(b), but the District Court denied it
because it was not sufficiently supported by law and facts. He
does not appeal the denial here. See supra note 16.
33
    We also reject Renteria’s argument that a reasonable
foreseeability test should be adopted to create consistency with
the principles of co-conspirator liability set forth in Pinkerton
v. United States, 

(1946). In short, venue, an
element more akin to jurisdiction than anything else, see supra
p. 9, and co-conspirator liability are significantly different
concepts that do not necessitate the same law.




                               12
there, his co-conspirators sent methamphetamine to Kuc there
and directed phone calls to him there.34 These activities
constitute overt acts in furtherance of the conspiracy that are
certainly sufficient to establish venue under § 3237(a).35

                                   III.

       We now turn to Renteria’s challenge to the District
Court’s jury instructions. As discussed above, the District
Court instructed the jury in relevant part:

      The government does not need to prove that the
      defendant himself was present in this district,
      instead [venue] can be established in this district
      if a co-conspirator has committed an act in
      furtherance of the conspiracy here even if the
      defendant did not know or did not reasonably
      foresee that the act occurred or would occur in
      this district.36


34
   See 

(“[V]enue can be established
wherever a co-conspirator has committed an act in
furtherance of the conspiracy.”).
35
   See, e.g., 

(explaining that a
confidential informant’s presence in the Northern District of
California during telephone calls with a co-conspirator
“sufficed to establish venue there on the conspiracy charge”);
United States v. Cordero, 

, 43-44 (1st Cir. 1981)
(concluding that venue was appropriate in Puerto Rico when
an undercover law enforcement agent was located there and
spoke to the conspirators on the phone 

.




                              13
Renteria’s only argument regarding the jury instructions is that
the District Court should not have instructed the jury that venue
could be laid “even if the defendant did not know or did not
reasonably foresee that [an act in furtherance of the conspiracy]
occurred or would occur in this district.”37

      Because we do not adopt a reasonable foreseeability test
for venue under § 3237(a), we conclude that the District
Court’s jury instructions were proper.

                              IV.

         Lastly, we will address Renteria’s appeal of his
sentence. As mentioned above, before Renteria’s sentencing
hearing, the Probation Office calculated Renteria’s Guidelines
range and included the drugs Renteria’s co-conspirators sent to
Kuc in Pennsylvania as part of the calculation. At sentencing,
the District Court adopted the Probation Office’s Presentence
Report without objection from Renteria, and he was sentenced
to 153 months’ imprisonment. Renteria now claims that the
methamphetamine sent to Pennsylvania should not have been
included in the calculation of his base offense level under the
Guidelines. He argues that without including the Pennsylvania
shipment, his Guidelines range would have been 121 to 151
months instead of 151 to 188 months.

         Because Renteria did not object to the Guidelines
calculation at his sentencing, we review the District Court’s
decision for plain error.38 Under the Guidelines, a defendant’s
base offense level is calculated based, among other things, on

37
     

States v. Knight, 

, 206 (3d Cir. 2001).




                                14
“all acts and omissions committed, aided, abetted, counseled,
commanded, induced, procured, or willfully caused by the
defendant.”39

         In this case, Renteria directly participated in the
transaction involving the methamphetamine shipped to
Pennsylvania because he agreed to collect most of the money
for such drugs when he met Kuc in California. Accordingly,
we conclude that it was not plain error for the District Court to
determine that Renteria aided and/or abetted the transaction.
Therefore, it was also not plain error for the District Court to
include the shipped methamphetamine in its calculation of
Renteria’s base offense level for sentencing. We will affirm
Renteria’s sentence.

                               V.

       For the foregoing reasons, we decline to adopt a
reasonable foreseeability test to establish venue under
§ 3237(a). We therefore conclude that the Eastern District of
Pennsylvania was a proper venue for Renteria’s case and that
the District Court’s jury instructions were proper. We will also
affirm Renteria’s sentence of 153 months’ imprisonment.




39
     Guidelines § 1B1.3(a)(1)(A).




                               15