United States of America v. Nora Gilda Guevara Triana

United States Court of Appeals
For the Eighth Circuit
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No. 22-1455
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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
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Appeal from United States District Court
for the District of Nebraska - Omaha
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Submitted: June 14, 2023
Filed: August 15, 2023
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Before LOKEN, COLLOTON, and ERICKSON, Circuit Judges.
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ERICKSON, Circuit Judge.
Nora Gilda Guevara Triana and Tanner Leichleiter were convicted in district
court1 on charges arising out of the kidnapping of Guevara’s minor grandchildren.
Guevara appeals 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 prevented De La Garza from leaving the motel room where they
were staying and used a hammer to smash De La Garza’s phone and smart watch.
At Guevara’s urging, Leichleiter took De La Garza’s two minor children and fled.
De La Garza was eventually able to escape in the early morning hours of April 20
and called 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 for the children. Guevara
told law enforcement during a recorded interview that the children were safe but
refused to provide their location. Guevara stated Leichleiter took the children as a
favor to her so she could teach De La Garza a lesson.
Leichleiter fled with the children to a residence in Harvard, Nebraska. After
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.

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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. The 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. The day before his trial
was set to begin Leichleiter signed a form entitled Petition to Enter a Plea of Guilty.
On that form, Leichleiter 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 firearms 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 narcotics 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 months’
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 firearms count, Leichleiter filed several
objections to the Presentence Investigation Report and moved the court to enforce

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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. Leichleiter also objected to the probation officer’s
determination that he possessed the firearms in relation to felony child abuse. The
district court issued tentative findings that overruled 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 Sentencing Guidelines range was 78 to 97 months and imposed a within-
Guidelines 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 range.
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, 919 (8th Cir. 2016). A
misunderstanding of how 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

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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, contrary 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 one 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 Leichleiter acknowledged, at his plea hearing that the sentence
imposed could be different from the sentence he or his lawyer expected. 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
When reviewing 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, 583 (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 found Leichleiter used or possessed firearms 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 health.” Neb. Rev. Stat.
§ 28-707. “Endangers” is defined as exposing a minor child’s life or health to danger

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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 abuse, 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. They 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 that Leichleiter endangered 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
establishes 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). Here, the 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 when 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.

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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 kidnapping 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). The evidence 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 testified that she did not give consent to
Leichleiter to take 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. The 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

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Guevara next challenges the district court’s instructions to the jury that she
was charged with kidnapping “and” aiding and abetting kidnapping. We 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 reviewing 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 harmless 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. The special verdict form
undeniably separated the single count against Guevara into two parts: kidnapping
and aiding and abetting kidnapping. But, according to Guevara, instructing the jury
that she was charged with both kidnapping and aiding and abetting constituted a
constructive amendment of the indictment. Under the facts of this case, her
argument is without merit.
A constructive amendment “occurs when the essential elements 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, 694 (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.

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Instruction No. 7 mirrored the language of the indictment and did not alter the
elements of the charged offense. Any imprecision in 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 the 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). While
Instruction No. 7 was not a model of clarity when it stated the defendants were
charged with kidnapping “and” aiding and 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
overruled her request to admit the full recording of her interview with law
enforcement. We 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 fairness
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, 699 (8th Cir. 2022).
As the party urging the admission of excluded portions of the recording,
Guevara bears the burden of specifying the portions of the recording that were
relevant to an issue at trial and that qualified or explained the admitted portions of
the recording. See id. at 700. Guevara has never identified the parts of the recording

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that were necessary to explain the admitted portions; rather, she contends only that
the district court deprived 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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