## United States Court of Appeals **For the Eighth Circuit**

___________________________
No. 22

- 1455

___________________________
United States of America

Plaintiff - Appellee

v.

Nora Gilda Guevara Triana

Defendant - Appellant

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No. 22

- 2386

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United States of America

Plaintiff - Appellee

v.

Tanner J. Leichleiter

Defendant - Appellant

____________ Appeal from United States District Court for the District of Nebraska - Omaha

____________
Submitted: June 14, 2023

Filed: August 15, 2023

____________-2- Before LOKEN

, COLLOTON, and ERICKSON, Circuit Judges

.

____________
ERICKSON, Circuit J udge.

Nora Gilda Guevara Triana and Tanner Leichleiter were convicted in district

court 1 on charges arising out of the kidnapping of Guevara’s minor grandchildren.
Guevara appeal s her conviction for aiding and abetting kidnapping

, in violation of
18 U.S.C. §§ 1201(a)(1) and 2

, and Leichleiter appeals his conviction for being a prohibited person in possession of firearms, in violation of 18 U.S.C. §§ 922(g)(3) and 924(a)(2)

. We affirm.

I. BACKGROUND

On April 19 , 2020, Guevara began arguing with her daughter Karen De La
Garza . Guevara prevent ed De La Garza from leaving the m otel room where they were staying and used a hammer to smash De La Garza ’s phone and smart watch

. A t Guevara’s urging

, Leichleiter took De La Garza’s two minor children and fled

. De La Garza was eventually able to escape in the ear ly morning hours of April 20
and call ed the police

. When law enforcement met with De La Garza , she informed
the officers that Leichleiter had taken her children without her permission. Law
enforcement arrested Guevara and issued an Amber Alert f

or the children

. Guevara
told law enforcement during a recorded interview that the children were safe but refused to provide their location

. Guevara s tated Leichleiter took the children as a
favor to her so she could teach De La Garza a lesson.

L eichleiter fled with the children to a residence in Harvard, Nebraska

. A fter arriving at the house, Leichleiter learned that Guevara had been arrested for kidnapping the children

. Armed with this knowledge, Leichleiter put the children in

1 The Honorable Brian C. Buescher, United States District Judge for the District of Nebraska.-3- his vehicle and drove from Nebraska to Kansas. The children , shoeless and not in
car seats, rode in the backseat of the vehicle. During the trip to Kansas
, Leichleiter told the children to duck down and hide so they would not be recognized by law
enforcement . T he vehicle was eventually recognized from the Amber Alert and law enforcement effectuated a stop . Inside the vehicle

, officers found the children ; ten firearms, one of which had a loaded clip ; loose ammunition ; and marijuana. Both the firearms and the marijuana were within reach of the children.

Leichleiter was indicted for kidnapping and aiding and abetting kidnapping
and for being a prohibited person in possession of firearms

. T he day before his trial was set to begin Lei c hleiter signed a form entitled Petition to Enter a Plea of Guilty. On that form, Lei chleiter wrote that he believed he was guilty of possessing a firearm for sporting purposes while being an unlawful user of marijuana. At the change of plea hearing

, after being fully advised of the nature of the firearms charge, the penalties he faced, the role of the Sentencing Guidelines, and his constitutional rights, Leichleiter entered an open plea of guilty to the firearm s charge. The factual basis provided by the prosecutor indicated that the evidence at trial would show Leichleiter was a drug user at the time ten firearms and narcot ic s were recovered
from Leichleiter’s vehicle during a traffic stop. When asked if the government would be able to prove these facts, Leichleiter responded, “Yes, sir.”

Guevara and Leichleiter both proceeded to trial on the kidnapping charge

. The court admitted, over Guevara’s objection, excerpts from her recorded interview
with law enforcement

. The jury found Guevara guilty of kidnapping and Leichleiter not guilty of the charge. Guevara was sentenced to a term of 100 mont hs ’ imprisonment. Guevara appeals, asserting (1) the district court erred in refusing to admit the full recording of her interview with law enforcement; (2) the district court erred in instructing the jury and preparing the jury verdict form; and (3) the evidence
was insufficient to sustain the conviction.

Prior to his sentencing on the firearm s count, Leichleiter filed several objections to the Presentence Investigation Report and mo ved the court to enforce-4- what he believed to be the terms of his guilty plea . Leichleiter claimed that his guilty plea cabined the base offense level at 6 rather than 20, as determined by the probation officer, because he had stated on the pre

- plea petition form that the firearms were possessed for sporting purposes. Leichle iter also objected to the probation officer’s determination that he possessed the firearms in relation to felony child abuse

. T he district court issued tentative findings that overrul ed all Leichleiter’s objections

, informed Leichleiter that it did not intend to apply the probation officer’s suggested reduction for acceptance of responsibility, and denied Leichleiter ’s motion to adopt his proposed Sentencing Guidelines calculation

. Leichleiter then unsuccessfully moved to withdraw his guilty plea. The district court found Leichleiter’s attempt to
withdraw his plea ten months later was essentially an attempt to bifurcate a trial that
should not have been bifurcated. Ultimately

, the court found that Leichleiter ’s advisory S entencing G uidelines range was 78 to 97 months and imposed a within

G uidelines sentence of 96 months ’ imprisonment

.

Leichleiter appeals , asserting the district court erred when it (1) declined to grant his motion to withdraw his plea ; and (2) committed procedural error in calculating his Sentencing Guidelines r ange.

II. DISCUSSION

1. Leichleiter’s Motion to Withdraw Guilty Plea

While a defendant may withdraw a guilty plea for a “fair and just reason

, ”
Fed. R. Crim. P. 11(d)(2)(B) , we have noted that pleading guilty is a solemn act not lightly set aside

. United States v. Briggs , 820 F.3d 917, 9 19 (8th Cir. 2016)

. A misunderstanding of h ow the Sentencing Guidelines apply in a defendant’s case is not a permissible reason to withdraw a guilty plea. Id. at 920

. We review a district
court’s denial of a motion to withdraw a guilty plea for abuse of discretion. Id.

Leichleiter contends the district court should have granted his motion to withdraw his plea because it failed to advise him at the time of his plea that the court-5- was not bound by his pre- plea petition statement that he possessed the firearms for sporting purposes. The plea here was open and no binding version of the facts was presented to the court

. At the hearing, Leichleiter neither objected to the government’s factual basis nor made any statement qualifying the reason for his
firearms possession

. Moreover, cont rary to Leichleiter’s belief, the sporting purposes subsection of the Sentencing Guidelines would not fairly apply to his
offense conduct

. Ten firearms were recovered from Leichleiter’s vehicle

. The sporting exception is inapplicable when a firearm falls within § 2K2.1(a)(4). See U.S.S.G. § 2K2.1(b)(2)

. The district court found that o ne of the firearms met the definition of a semiautomatic firearm capable of accepting a large

- capacity magazine under § 2K2.1(a)(4) —a factual finding that Leichleiter does not challenge and is not clearly erroneous. In addition

, the district court specifically informed
Leichleiter

, and Lei c hleiter acknowledged

, at his plea hearing that the sentence imposed could be different from the sentence he or his lawyer expect ed

. Leichleiter
has not offered a fair and just reason for withdrawing his plea. The district court did
not abuse its discretion in denying his motion to withdraw his guilty plea

.

2. Leichleiter’s Sentence

W hen review ing a sentence for procedural error, we apply a clear error
standard to the district court’s factual findings and de novo review to the district court’s application of the Sentencing Guidelines. United States v. Ayres

, 929 F.3d
581 , 5 8 3 (8th Cir. 2019).

Leichleiter first claims the district court erred by increasing his base offense by four levels, contending he did not possess firearms in connection with another felony offense

. The district f ound Leichleiter used or possessed firearm s in
connection with Nebraska felony child abuse

. See U.S.S.G. § 2K2.1(b)(6)(B)

. In Nebraska, a person commits child abuse if, in relevant part, he knowingly, intentionally, or negligently causes or permits a minor child to be “[p]laced in a situation that endangers his or her life or physical or mental heal th.” Neb. Rev. Stat. § 28

- 707

. “Endangers” is defined as expos ing a minor child’s life or health to danger-6- or the peril of probable harm or loss

. State v. Ferguson, 919 N.W.2d 863, 881 ( Neb. 2018)

. Because Leichleiter had not been convicted of child ab use, the district court
had to find by a preponderance of the evidence that the offense was committed

, and the use or possession of a firearm facilitated the felony offense

. United States v.
Mathis , 911 F.3d 903, 907 (8th Cir. 2018)

.

The children Leichleiter kidnapped were four and seven years old . The y were found by law enforcement without car seats or shoes in a vehicle with firearms and marijuana within their reach. On this evidence, it is not error, clear or otherwise, to
find th at Leichleiter e ndangered the children’s “life or physical or mental health.” Nor did the district court err when it found to a preponderance of the evidence that
Leichleiter’s possession of firearms facilitated the child abuse

. Our precedent
establishe s that if a defendant keeps a firearm at an easily accessible location while committing a felony offense, the sentencing court may infer that the firearm emboldened the defendant to engage in the unlawful act. Id. at 908. The district court’s findings support the application of § 2K2.1(b)(6)(B ).

Leichleiter next claims the district court erred when it refused to decrease his offense level for acceptance of responsibility

. A district court’s factual
determination regarding a defendant’s entitlement to acceptance of responsibility is entitled to great deference, and we will reverse only if the determination is “ so clearly erroneous as to be without foundation. ” United States v. Bastian , 603 F.3d 460, 465 (8th Cir. 2010). Her e, t he district court found Leichleiter showed no
remorse for his conduct . The court noted Leichleiter only decided to plead guilty the day before trial and found his later attempt to withdraw his plea demonstrated a lack of acceptance

. We have upheld a district court’s refusal to adjust a defendant’s offense level for acceptance of responsibility whe n he attempted to withdraw his guilty plea. See, e.g

. , id

. ; United States v. Newson, 46 F.3d 730, 734 (8th Cir. 1995)

. Leichleiter has shown no reversible error regarding the court’s refusal to adjust his Sentencing Guidelines range for acceptance of responsibility.-7- 3. Guevara’s Sufficiency of the Evidence Arguments

Guevara contends the evidence presented at trial was insufficient to sustain
her conviction because the government failed to demonstrate that De La Garza did not consent to Guevara taking the children. We review sufficiency of the evidence
claims de novo , viewing the evidence in a light most favorable to the verdict

. United
States v. Hill , 410 F.3d 468, 471 (8th Cir. 2005). Our inquiry is whether no reasonable jury could have found Guevara guilty beyond a reasonable doubt. See United States v. Harlan, 815 F.3d 1100, 1106 (8th Cir. 2016)

.

Conduct giving rise to the offense of k idn apping under 18 U.S.C. § 1201(a)
includes : (1) seizing

, confining, inveigling, decoying, kidnapping, abducting, or carrying away a person ; and (2) holding that person for ransom, reward, or
otherwise. United States v. Lussier , 844 F.3d 1019, 1023 (8th Cir. 2017) (citing Chatwin v. United States, 326 U.S. 455, 459 (1946)). The statute also requires, in relevant part, the willful transportation of a person in interstate or foreign commerce. 18 U.S.C. § 1201(a)(1). T he evidenc e presented at trial was more than sufficient to support the jury ’ s guilty verdict. Guevara told law enforcement in a recorded
interview that she directed Leichleiter to take the children because she was going to
teach De La Garza a lesson

. De La Garza t estified that she did not give consent to
Leichleiter to tak e the children and that Guevara told her that Leichleiter was going
to take the children because De La Garza did not love them, did not deserve to be
their mother

, and was not going to be able to see them ever again. De La Garza also testified that Guevara physically restrained her

, prevented her from leaving the motel
with the children

, and destroyed her phone and smart watch

. Leichleiter transported
the children across state lines. Th e record contains more than sufficient evidence for a reasonable jury to find Guevara guilty of aiding and abetting kidnapping.

4. Jury Instructions and Verdict Form-8- Guevara next challenges the district court’s instructions to the jury that she was charged with kidnapping “and” aiding and abetting kidnapping . W e generally
review a challenge to a jury instruction for abuse of discretion. United States v. Gill

, 513 F.3d 836, 849 (8th Cir. 2008). When reviewin g jury instructions, we determine whether the instructions, when taken as a whole and viewed within the light of the
evidence and the law

, fairly and adequately submitted the issues to the jury. United
States v. Beckman , 222 F.3d 512, 520 (8th Cir. 2000). We also apply h armless error review to instructional error. United States v. Janis , 810 F.3d 595, 598 (8th Cir. 2016) . We may disregard an error in the jury instructions if it is clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent
the error. Id.

In Instruction No. 7, the jury was instructed that Guevara and Leichleiter were charged with kidnapping and aiding and abetting

. Instruction No. 8 correctly set forth the elements for “[t]he crime of kidnapping, as charged in Count I of the
indictment

. ” The instruction also informed the jury that the offense may be committed even if a defendant did not personally do every act constituting the offense charged. It correctly identified the elements necessary for the jury to find Guevara guilty of aiding and abetting kidnapping. T he special verdict form undeniably separated the single count against Guevara into two parts: kidnapping and aiding and abetting kidnapping

. But, a ccording to Guevara, instruct ing the jury that she was charged with both kidnapping and aiding and abetting constitute d a constructive amendment of the indictment

. Under the facts of this case, her argument is without merit.

A constructive amendment “ occurs when the essential elemen ts of the offense as charged in the indictment are altered in such a manner that the jury is allowed to
convict the defendant of an offense different from or in addition to the offenses charged in the indictment .” United States v. Shavers , 955 F.3d 685, 6 94 (8th Cir. 2020) (cleaned up). When evaluating whether an indictment was constructively amended, we consider the jury instructions as a whole and whether they created a substantial likelihood that the defendant was convicted of an uncharged offense. Id

.-9- Instruction No. 7 mirror ed the language of the indictment and did not alter the
elements of the charged offense . Any imprecision i n Instruction No. 7 was remedied by Instruction No. 8, which set forth the elements of the crime and made clear that aiding and abetting is simply a manner and method of committing the crime of kidnapping. Once t he jury found Guevara guilty of kidnapping, it is immaterial whether she acted as a principal or as an aider and abettor. See United States v. McKnight , 799 F.2d 443, 445 (8th Cir. 1986) (holding aiding and abetting is an alternative charge in every count and can even be implicitly charged )

. W hile
Instruction No. 7 was not a model of clarity when it stated the defendants were charged with kidnapping “and” aiding a nd abetting

, it is clear beyond a reasonable doubt that a rational jury would have found Guevara guilty absent the alleged error

.

5. Admission of the Recorded Interview

Guevara contends that she did not receive a fair trial because the district court

overru led her request to admit the full recording of her interview with law
enforcement

. W e review this alleged evidentiary ruling for a clear abuse of
discretion

. United States v. Farrington , 42 F.4th 895, 900 (8th Cir. 2022 ), cert. denied , 143 S. Ct. 505 (2022) ).

Under Federal Rule of Evidence 106, “ [i] f a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part

— or any other writing or recorded statement

— that in fairn ess ought to be considered at the same time.” Rule 106 “operates to ensure fairness where a misunderstanding or distortion created by the other party can only be averted by the introduction of the full text of the out

- of

- court statement.” United States v

. Ali , 47 F.4th 691, 69 9 (8th Cir. 2022).

As the party urging the admission of excluded portions of the recording,
Guevara bears the burden of specifying the portion s of the recording that were relevant to an issue at trial and that qualifie d or explain ed the admitted portions of the recording. See id. at 700. Guevara has never identified the parts of the recording- 10 - that were necessary to explain the admitted portions ; rather

, she contends only that

t he district court de prived her of her right to a fair trial by refusing to play the entire recording to the jury. Guevara has neither satisfied her burden of showing a violation of Rule 106 nor has she specified how the refusal to play the entire recording deprived her of a fair trial. The district court did not abuse its discretion when it overruled her request to play the entire recording.

III. CONCLUSION

For the foregoing reasons, we affirm the judgments of the district court.

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