                                                           FILED
                                               United States Court of Appeals
                UNITED STATES COURT OF APPEALS         Tenth Circuit

                       FOR THE TENTH CIRCUIT                        April 16, 2019
                       _________________________________
                                                                 Elisabeth A. Shumaker
                                                                     Clerk of Court
UNITED STATES OF AMERICA,

       Plaintiff-Appellee,

v.                                                  No. 18-1133
                                          (D.C. No. 1:16-CR-00306-RBJ-4)
HERNANDO AGUILAR-                                    (D. Colo.)
BANUELOS,

       Defendant-Appellant.
                     _________________________________

                       ORDER AND JUDGMENT *
                       _________________________________

Before HOLMES, BACHARACH, and PHILLIPS, Circuit Judges.
                  _________________________________

      Mr. Hernando Aguilar-Banuelos was convicted of aiding and abetting

a kidnapping. See 18 U.S.C. §§ 2, 1201(a)(1). 1 He appeals, challenging the

sufficiency of the evidence. We affirm in light of the government’s




*
      The parties do not request oral argument, and it would not materially
aid our consideration of the appeal. We thus have decided the appeal based
on the briefs. See Fed. R. App. P. 34(a)(2); Tenth Cir. R. 34.1(G).

     This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But our order and judgment may be cited for its persuasive value if
otherwise appropriate. See Fed. R. App. P. 32.1(a); Tenth Cir. R. 32.1(A).
1
    He was acquitted of conspiring to kidnap and receiving ransom
money.
evidence that Mr. Aguilar-Banuelos intentionally assisted in the

kidnapping.

1.   Three men carry out the kidnapping.

     Three men planned a kidnapping and asked Mr. Aguilar-Banuelos to

keep the victim at his apartment. Mr. Aguilar-Banuelos declined, but he let

the kidnappers use his apartment to keep the victim. During the actual

kidnapping, Mr. Aguilar-Banuelos stayed at a motel. The kidnappers paid

for the motel room and promised to give Mr. Aguilar-Banuelos $300, to

pay one month’s rent for his apartment, and to give him a handgun.

     The kidnapping took place as planned, and the kidnappers obtained

cell phones to use in communicating about the ransom. The victim was

taken to Mr. Aguilar-Banuelos’s apartment, and Mr. Aguilar-Banuelos

helped the kidnappers activate their cell phones.

     The kidnappers then took Mr. Aguilar-Banuelos to the motel, where

he stayed for three nights while the kidnappers sought to collect the

ransom. After three nights, the kidnappers collected the ransom, returned

the victim to his family, and drove Mr. Aguilar-Banuelos to his apartment.

2.   We conduct de novo review over the sufficiency of the evidence.

     The threshold issue involves our standard of review. The government

contends that we should apply the plain-error standard because Mr.

Aguilar-Banuelos presented a different argument in district court.



                                     2
     We assume for the sake of argument that Mr. Aguilar-Banuelos

preserved his present theory. Given this assumption, we engage in de novo

review. United States v. Delgado-Uribe, 363 F.3d 1077, 1081 (10th Cir.

2004) . In conducting de novo review, we view the evidence in the light

most favorable to the government and ask whether a reasonable jury could

find Mr. Aguilar-Banuelos guilty beyond a reasonable doubt. United States

v. King, 632 F.3d 646, 650 (10th Cir. 2011) . This inquiry does not permit

us to gauge the witnesses’ credibility. Id. We can reverse only if the jury

could not rationally find each element of the crime. Id.

3.   The evidence was sufficient to convict of aiding and abetting.

     The conviction involved aiding and abetting a kidnapping. A

kidnapping takes place when the defendant holds someone against his or

her will for the defendant’s benefit. United States v. Gabaldon, 389 F.3d

1090, 1094 (10th Cir. 2004). The defendant could incur guilt for aiding and

abetting the kidnapping if he aided the kidnappers in relation to one or

more of the crime’s phases or elements. Rosemond v. United States, 572

U.S. 65, 71 (2014).

     Mr. Aguilar-Banuelos points to evidence that he declined some of the

kidnappers’ requests. For example, he states that

          he declined an offer to participate in the kidnapping in
           exchange for $25,000 to $30,000,




                                      3
          he left the apartment “to separate himself from the kidnapping”
           (Appellant’s Opening Br. at 12), and

          he was merely subletting the apartment. 2

But the jury could reasonably have found participation based on Mr.

Aguilar-Banuelos’s actions and his statements to the police afterward.

     Though Mr. Aguilar-Banuelos was absent for the actual abduction

and concealment of the victim, the government presented evidence that Mr.

Aguilar-Banuelos had attended a planning meeting at his apartment, let the

kidnappers use his apartment to keep the victim, helped the kidnappers

activate the cell phones that they later used to demand the ransom, told the

kidnappers where they could get the security uniforms later worn during

the abduction, and asked one of the kidnappers when the “fiesta” (code

word for the kidnapping) would happen so that he’d know when to leave

the apartment. For his efforts, Mr. Aguilar-Banuelos was paid and given a

handgun.

     The government also presented evidence that after the kidnapping,

Mr. Aguilar-Banuelos told law enforcement officials that he had informed

the kidnappers where they could get security uniforms, had obtained

ammunition for the handgun that he had been promised, had been promised


2
      In district court, Mr. Aguilar-Banuelos denied that he’d wanted the
kidnappers to succeed. But if he chose to help the kidnappers with
knowledge of their scheme, the intent element would be satisfied even if he
privately hoped that the kidnapping would fail. Rosemond v. United States,
572 U.S. 65, 79–80 (2014).
                                     4
money for his rent, had been given additional money to pay another

participant involved in the kidnapping, had been given cash for the motel

room, and had accompanied the kidnappers to the motel.

     Mr. Aguilar-Banuelos’s arguments do little to undermine the

government’s evidence of his participation in the kidnapping. He declined

a bigger offer for greater involvement, but he unquestionably helped the

kidnappers. For example, Mr. Aguilar-Banuelos let the kidnappers use his

apartment to keep the victim while they arranged for the ransom.

     Mr. Aguilar-Banuelos downplays this help, pointing out that he was

merely subletting the apartment. As a sublessor, however, he let the

kidnappers use the apartment. The jury could reasonably find that Mr.

Aguilar-Banuelos had known that he was helping the kidnappers regardless

of whether he was leasing or subleasing the apartment.

     The combination of evidence permitted a reasonable finding that Mr.

Aguilar-Banuelos had aided and abetted the kidnapping. We thus conclude

that the evidence was sufficient to support the conviction.

     Affirmed.


                                      Entered for the Court


                                      Robert E. Bacharach
                                      Circuit Judge




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