                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                       No. 14-2891
                                      ____________

                            UNITED STATES OF AMERICA

                                             v.

                                 MIGUEL LAVENANT,
                                          Appellant
                                    ____________

                      On Appeal from United States District Court
                                for the District of Delaware
                             (D. Del. No. 1-12-cr-00028-002)
                     District Judge: Honorable Richard G. Andrews
                                       ____________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    April 20, 2015

             Before: FISHER, CHAGARES, and COWEN, Circuit Judges.

                                  (Filed: April 21, 2015 )
                                       ____________

                                        OPINION*
                                      ____________

FISHER, Circuit Judge.

       Miguel Angel Lavenant was convicted of one count of conspiracy to distribute

cocaine and three counts of money laundering in the United States District Court for the

       *
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
District of Delaware. The District Court sentenced him to 293 months of imprisonment.

Lavenant appeals both his conviction and sentence. We will affirm.

                                              I.

       We write principally for the parties, who are familiar with the factual context and

legal history of this case. Therefore, we will set forth only those facts that are necessary

to our analysis.

       In November 2011, Roscoe Hall asked a source cooperating with the Drug

Enforcement Administration (“DEA”) to send a truck with a hidden compartment from

Delaware to San Diego, California, and to transport it back to Delaware. DEA agents

provided the source with such a truck and observed the truck in San Diego. The agents

saw Hall and Lavenant drive it to Lavenant’s house, where they loaded the truck with

over 5 kilograms of cocaine.

       When Hall arrived in Delaware, agents arrested him. Hall told them that Lavenant

supplied him with cocaine that he distributed in Delaware and agreed to cooperate in the

agents’ investigation of Lavenant. In a series of phone calls, Lavenant instructed Hall to

deposit money for the cocaine in three bank accounts in the names of others. Hall

deposited the money at bank branches located in Delaware and New Jersey.

       In May 2012, agents searched Lavenant’s California home pursuant to a search

warrant based in part on information Hall provided. They discovered a telephone used to




                                              2
communicate with Hall, documents associated with the three bank accounts, and

paraphernalia used to package cocaine.

       A federal grand jury in Delaware indicted Lavenant on one count of conspiracy to

distribute five or more kilograms of cocaine, in violation of 21 U.S.C. §§ 841 and 846,

and one count of distribution of cocaine, in violation of 21 U.S.C. § 841. After being

arrested in and extradited from California, the grand jury issued a superseding indictment

that added three counts of money laundering, in violation of 18 U.S.C. §§ 2 and 1956.

       The District Court granted Lavenant’s request to represent himself. He filed two

motions to dismiss the superseding indictment, a motion to suppress the evidence

discovered as a result of the search of his home, and a motion for a hearing pursuant to

Franks v. Delaware.1 The District Court denied the motions. The District Court also

dismissed the second distribution of cocaine charge without prejudice for lack of venue in

Delaware.

       A jury found Lavenant guilty of the remaining four charges. After a two-day

sentencing hearing, the District Court sentenced Lavenant to 293 months of incarceration.

Lavenant filed a timely appeal.2




       1
        438 U.S. 154 (1978).
       2
        Although we appointed counsel to represent Lavenant in this appeal, Lavenant
requested to proceed pro se and waived counsel. Accordingly, we granted his request to
proceed pro se.

                                             3
                                            II.

       Having construed his pro se brief liberally, we find that Lavenant challenges his

conviction and sentence on four grounds. First, he argues that the District Court lacked

jurisdiction over his case and that venue was not proper in the District of Delaware.

Second, he argues that the superseding indictment was improper. Third, he argues that the

search warrant for his California home was not supported by probable cause and was not

properly issued. And finally, he argues that his sentence of 293 months of incarceration

violates his Sixth Amendment right to a jury trial and is unreasonable.3 We address each

argument in turn.

                                            A.

       The District Court had jurisdiction over this criminal prosecution, and based on

the evidence produced at trial, venue was proper for each of the charges in the District of

Delaware.4

       Title 18 United States Code section 3231 gives district courts original jurisdiction

over criminal prosecutions for violations of federal law. Because Lavenant was indicted

       3
         At times, Lavenant’s brief refers to trial rulings and the admission of certain
evidence as improper. However, he does not specifically identify which rulings he thinks
were improper and presents no explanation as to why they were improper. “[A] passing
reference to an issue . . . will not suffice to bring that issue before this [C]ourt.”
Laborers’ Int’l Union of N. Am., AFL-CIO v. Foster Wheeler Energy Corp., 26 F.3d 375,
398 (3d Cir. 1994) (alteration in original) (internal quotation marks omitted).
       4
         We review questions of jurisdiction and venue de novo. See United States v.
Auernheimer, 748 F.3d 525, 532 (3d Cir. 2014); United States v. Best, 304 F.3d 308, 311
(3d Cir. 2002). We have jurisdiction over this appeal under 18 U.S.C. § 3742(a) and 28
U.S.C. § 1291.

                                             4
for violating federal drug trafficking and money laundering statutes, the District Court

had jurisdiction over the charges.

       Federal Rule of Criminal Procedure 18 requires that a trial take place in the district

where the alleged offense was committed. Title 18 United States Code section 3237(a)

allows a trial for a continuing offense to take place “in any district in which such offense

was begun, continued, or completed.” For conspiracy, “venue can be established

wherever a co-conspirator has committed an act in furtherance of the conspiracy.”5 When

venue is materially disputed, the Government must prove venue to the jury by a

preponderance of the evidence.6

       For the conspiracy charge, Hall contacted the cooperating source in Delaware to

arrange for the truck with a hidden compartment to be sent to San Diego. Lavenant also

communicated with Hall in Delaware about distributing cocaine there, and Hall

distributed cocaine he received from Lavenant in Delaware. And for the money

laundering charges, Hall deposited money in Delaware into the bank accounts Lavenant

identified. These facts were sufficient for the jury to conclude that venue was proper in

the District of Delaware.

                                              B.

       Lavenant’s second argument is that the District Court should have dismissed the

superseding indictment because it changed the charges against him without having been

       5
           United States v. Perez, 280 F.3d 318, 329 (3d Cir. 2002).
       6
           Id. at 334.

                                              5
resubmitted to the grand jury.7 He claims that only an Assistant United States Attorney

signed the superseding indictment, not the grand jury foreperson. This argument loses.

The grand jury issued the superseding indictment. The copy of the superseding

indictment in the appendices the parties submitted on appeal lacks the grand jury

foreperson’s signature because it is redacted to protect the foreperson’s identity. 8 The

unredacted version of the superseding indictment—which is on file with the District

Court as Docket Entry 37 but not publicly available—bears the foreperson’s signature. In

addition to being properly issued, the superseding indictment adequately pled the charges

and otherwise provided Lavenant with fair notice of the charges against him.9 Thus, we

will affirm the District Court’s decision not to dismiss the superseding indictment.

                                             C.

       Lavenant next brings a variety of challenges to the search warrant that agents

executed at his home.10 He says that the Government forged the Magistrate Judge’s

signature on the warrant, that the warrant was an improper general warrant, and that the

warrant was not supported by probable cause. None of these arguments has merit.




       7
          We review challenges to an indictment de novo. See United States v. Werme, 939
F.2d 108, 112 (3d Cir. 1991).
        8
          See Supp. App. at 23.
        9
          Werme, 939 F.2d at 112.
        10
           In reviewing the District Court’s denial of the motion to suppress, we review its
legal conclusions de novo and its factual findings for clear error. See United States v.
Ritter, 416 F.3d 256, 261 (3d Cir. 2005).

                                              6
       First, no one forged the Magistrate Judge’s signature on the search warrant.

Lavenant’s basis for this argument is that the signature that appears on the search warrant

is different from the initials of the Magistrate Judge on a later order rejecting one of

Lavenant’s filings.11 As the District Court stated, this discrepancy is of no legal import.

The order rejecting Lavenant’s filing was signed by one of the Judge’s staff members

with the authority to do so. The staff member placed the Judge’s initials in the area of the

order marked, “Chambers Of:” to indicate which judge was issuing the order.12 The

Judge’s signature on the search warrant was authentic and not forged.

       Second, the warrant was not an improper general warrant. The warrant refers to an

Attachment A to describe the premises to be searched and an Attachment B to describe

the things to be seized.13 Attachment A adequately describes Lavenant’s home, and

Attachment B adequately describes the things to be seized: narcotics, proceeds from the

sale of narcotics, firearms, financial records, and communication devices.14 Therefore, the

warrant “particularly describ[ed] the place to be searched, and the . . . things to be

seized.”15

       Third, the search warrant was supported by probable cause. A warrant may not

issue without probable cause that the place to be searched contains a person or items that

       11
           Compare Supp. App. at 432 (search warrant), with Dist. Ct. Dkt. Entry 45 at 4
(later order).
        12
           Dist. Ct. Dkt. Entry 45 at 4.
        13
           Supp. App. at 432.
        14
           Supp. App. at 429-31.
        15
           U.S. Const. amend. IV.

                                              7
may be seized.16 A court reviewing a magistrate judge’s finding that such probable cause

existed must give “great deference” to that finding; we must ensure only that the

Magistrate Judge had a “substantial basis” to find that probable cause existed.17 The

affidavit submitted with the warrant application gave the Magistrate Judge a substantial

basis to find probable cause in this case. The affidavit detailed Lavenant and Hall loading

the truck with cocaine in San Diego, phone calls and other contacts between Lavenant

and Hall, and cash deposits to bank accounts Lavenant identified.18 Accordingly, we will

affirm the District Court’s denial of the motion to suppress.

                                             D.

       Finally, Lavenant challenges his sentence of 293 months of incarceration on

constitutional and reasonableness grounds.19 Lavenant first argues that the District Court

violated his Sixth Amendment right to a jury trial when it found certain facts by a

preponderance of the evidence at his sentencing. He also argues that his sentence is an

abuse of discretion.

       The District Court did not violate Lavenant’s right to a jury trial by finding certain

facts at his sentencing. The Sixth Amendment requires that any fact that increases the

       16
         Id.
       17
         United States v. Conley, 4 F.3d 1200, 1205 (3d Cir. 1993) (internal quotation
marks and emphasis omitted).
      18
         Supp. App. at 425-27.
      19
         We review constitutional challenges to a sentence de novo and challenges to the
procedural and substantive reasonableness of a sentence for abuse of discretion. See
United States v. Tomko, 562 F.3d 558, 567-68 (3d Cir. 2009) (en banc); United States v.
Lennon, 372 F.3d 535, 538 (3d Cir. 2004).

                                              8
statutory maximum or minimum sentence a defendant may receive be proven to the jury

beyond a reasonable doubt.20 Here, the jury found that Lavenant conspired to possess

with the intent to distribute five kilograms or more of cocaine. This set the minimum

sentence of incarceration Lavenant could receive at 120 months and the maximum at

life.21 Once the maximum and minimum sentences were established, the District Court

could find facts pursuant to the advisory Sentencing Guidelines to determine an

appropriate sentence.22 The facts that Lavenant complains about were used to calculate

the advisory Guidelines range. This did not violate Lavenant’s right to a jury trial.

       Lavenant’s sentence is also procedurally and substantively reasonable. As required

by our precedent, the District Court first calculated the Guidelines range.23 After taking

evidence at the sentencing hearing, the District Court found that Lavenant was

responsible for more than 50 kilograms of cocaine and that the defendant possessed a

firearm in relation to the offense. These facts are not clearly erroneous, and together they




       20
         See Alleyne v. United States, 133 S. Ct. 2151, 2158 (2013).
       21
         21 U.S.C. § 841(b)(1)(A). Lavenant’s convictions for money laundering carried
no mandatory minimum sentence and a maximum sentence of 240 months. 18 U.S.C.
§ 1956(a)(3). Lavenant was sentenced to 120 months on each of those convictions, to run
concurrently with his sentence for the conspiracy charge; the money laundering sentences
complied with the Sixth Amendment.
      22
         See United States v. Grier, 475 F.3d 556, 568 (3d Cir. 2007) (en banc).
      23
         See Tomko, 562 F.3d at 567.

                                              9
set Lavenant’s offense level at 38.24 With a criminal history score of zero, Lavenant’s

advisory Guidelines range was 235 to 293 months of incarceration. The District Court

then heard the parties’ arguments, considered all of the factors listed in 18 U.S.C.

§ 3553(a), and imposed a sentence it believed was appropriate.25 Thus, Lavenant’s

sentence was procedurally reasonable. Additionally, considering the totality of the

circumstances, we find the sentence of 293 months of incarceration to be substantively

reasonable.26 In reviewing the substantive reasonableness of a sentence, we must affirm

“unless no reasonable sentencing court would have imposed the same sentence on that

particular defendant for the reasons the district court provided.”27 Here, the magnitude of

the cocaine and money involved warranted such a high sentence.

                                            III.

       For the reasons set forth above, we will affirm Lavenant’s judgment of conviction

and sentence.




       24
           See U.S.S.G. § 2D1.1(c)(2) (2012) (setting a base offense level of 36 for
between 50 and 150 kilograms of cocaine); id. § 2D1.1(b)(1) (2012) (establishing a two
level increase for possessing a firearm). Lavenant was sentenced using the 2012 version
of the Sentencing Guidelines.
        25
           See Tomko, 562 F.3d at 567.
        26
           Id.
        27
           Id. at 568.

                                             10
