PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_________________

No. 17-2079

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UNITED STATES OF AMERICA

v.

ZENAIDO RENTERIA, JR.,

Appellant

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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

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Argued April 18, 2018

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

Circuit Judges

(Filed: September 11, 2018)
2

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

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OPINION OF THE COURT

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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 
3

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 
4

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 prearranged 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 500 

 

1 App. at 262. 
5

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

Id. at 155.
6

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, 748 F.3d 525, 532

(3d Cir. 2014). The Government must prove that venue is 

proper by a preponderance of the evidence. Id. at 533. 
7

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, 524 U.S. 1, 6 (1998). 

7 U.S. Const. art III, § 2, cl. 3.

8

Id. amend. VI. 

9 Fed. R. Crim. P. 18.

10 Auernheimer, 748 F.3d at 532.

11 18 U.S.C. § 3237(a) (2012). 

12 United States v. Perez, 280 F.3d 318, 329 (3d Cir. 2002).
8

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 coconspirators 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, 347 F.3d 471, 483 (2d Cir. 2003)

(adopting a reasonable foreseeability test).

15 United States v. Gonzalez, 683 F.3d 1221, 1226 (9th Cir. 

2012) (“Simply put, section 3237(a) does not require 

foreseeability to establish venue for a continuous offense.”).
9

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, 510 F.3d 521, 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; id. amend. VI; 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 Johnson, 510 F.3d at 527. 
10

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 Perez, 280 F.3d at 330 (quoting United States v. Massa, 686 

F.2d 526, 530 (7th Cir. 1982)). 

21 United States v. Moyer, 674 F.3d 192, 208 (3d Cir. 2012)

(quoting United States v. Cooper, 482 F.3d 658, 664 (4th Cir. 

2007)).

22 Gonzalez, 683 F.3d at 1226 (“[V]enue is similar in nature to 

a jurisdictional element, and typically lacks any sort of explicit 

knowledge or foreseeability prerequisite.” (quoting Johnson, 

510 F.3d at 527)). See also Johnson, 510 F.3d at 527 (“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, 482 

F.3d 658, 664 (4th Cir. 2007)).

23 347 F.3d 471. 

24 246 F.3d 186 (2d Cir. 2001). 

25 962 F. Supp. 435 (S.D.N.Y. 1997). 
11

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 Svoboda, 347 F.3d at 483. 

27 See Bezmalinovic, 962 F. Supp. at 438-41; Kim, 246 F.3d at 

193. 

28 United States v. Kirk Tang Yuk, 885 F.3d 57, 69 n.2 (2d Cir. 

2018). 

29 Auernheimer, 748 F.3d at 540 (quoting United States v. 

Cores, 356 U.S. 405, 407 (1958)).
12

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, 506 F.3d 108, 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, 328 U.S. 640 (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. 
13

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 Perez, 280 F.3d at 329 (“[V]enue can be established 

wherever a co-conspirator has committed an act in 

furtherance of the conspiracy.”). 

35 See, e.g., Gonzalez, 683 F.3d at 1225 (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, 668 F.2d 32, 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 there). 

36 App. at 155.
14

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 Id.

38 United States v. Knight, 266 F.3d 203, 206 (3d Cir. 2001).
15

“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).