United States v. Alberto Quinto-Pascual ( 2021 )

United States Court of Appeals
For the Eighth Circuit
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No. 20-2715
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United States of America,
lllllllllllllllllllllPlaintiff - Appellee,
v.
Alberto Quinto-Pascual,
lllllllllllllllllllllDefendant - Appellant.
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Appeal from United States District Court
for the Northern District of Iowa - Eastern
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Submitted: April 16, 2021
Filed: August 16, 2021
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Before SMITH, Chief Judge, COLLOTON and ERICKSON, Circuit Judges.
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COLLOTON, Circuit Judge.
Alberto Quinto-Pascual pleaded guilty to two firearm offenses. The district
court1 imposed a sentence of 180 months’ imprisonment. Quinto-Pascual appeals his
sentence, but we conclude that there was no reversible error, and affirm the judgment.
The prosecution arose from Quinto-Pascual’s report to police in Waterloo,
Iowa, that a person identified by his initials as A.F. shot himself in the early hours of
May 10, 2019. Quinto-Pascual disclosed to police that the shooting occurred in a
house where he stayed on occasion, and that officers could find the gun under a car
in a nearby alley. Police found A.F. in a room with a bullet wound above his right
ear. Police also found a pipe with methamphetamine residue in the house. Quinto-
Pascual initially denied that the gun was his, but later admitted that he owned it. A.F.
died from his injury on May 11, 2019.
In June 2019, a grand jury charged Quinto-Pascual with possession of a firearm
as an unlawful user of a controlled substance and possession of a firearm with an
obliterated serial number. 18 U.S.C. § 922(g)(3), (k). Quinto-Pascual pleaded guilty,
and the case proceeded to sentencing. The parties disputed the proper base offense
level under the advisory guidelines. The government argued that the court should
apply the offense level for murder under a cross-reference in the firearms guideline.
Under USSG § 2K2.1(c)(1)(B), if the defendant used “any firearm or ammunition
cited in the offense of conviction in connection with the commission” of another
offense and death resulted, the district court is to apply the most analogous guideline
from USSG § 2A1. The prosecution argued that Quinto-Pascual intentionally shot
A.F., and that the guideline for first-degree murder or second-degree murder should
apply. See USSG §§ 2A1.1-.2.
1
The Honorable C.J. Williams, United States District Judge for the Northern
District of Iowa.
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After a hearing, the district court found by a preponderance of the evidence that
Quinto-Pascual intentionally shot A.F. with malice aforethought. The court applied
the guideline for second-degree murder, USSG § 2A1.2, and calculated an advisory
guideline range that exceeded the statutory maximum term of fifteen years, so the
guideline sentence became 180 months’ imprisonment. See 18 U.S.C. § 924(a)(1)(B),
(2); USSG § 5G1.1(a). The court then imposed a term of 180 months.
On appeal, Quinto-Pascual’s sole argument is that the court erred in finding
that he shot A.F. We review factual findings for clear error and reverse if the record
leaves us with a firm and definite conviction that the district court made a mistake.
See United States v. Smith, 929 F.3d 545, 547 (8th Cir. 2019). We will not reverse
merely because we “would have weighed the evidence differently.” Anderson v. City
of Bessemer City, 470 U.S. 564, 574 (1985).
The crux of Quinto-Pascual’s argument is that the evidence supported his
account that A.F. accidentally shot himself. At the sentencing hearing, Quinto-
Pascual testified to his version of events. He met A.F. for the first time at a bar on the
night of May 9, 2019. They drank beer, played pool, and eventually proceeded to the
bar’s restroom. In the restroom, A.F. revealed that he was carrying a
methamphetamine pipe, and Quinto-Pascual suggested that they leave the bar and
smoke methamphetamine. Quinto-Pascual then drove the pair to a nearby house.
Quinto-Pascual testified that he entered the house, retrieved his gun, and
handed the unloaded gun to A.F. On this account, A.F. placed the gun to his head and
pulled the trigger several times. Quinto-Pascual took the gun back and gave a pipe
with methamphetamine to A.F. Quinto-Pascual then instructed A.F. on how to open
the gun, and Quinto-Pascual loaded it with bullets to “show it off.” Quinto-Pascual
attempted to remove the bullets before giving the gun back to A.F., but testified that
a bullet might have been stuck in the chamber. Quinto-Pascual said that he then
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momentarily faced away from A.F., heard a gunshot, and turned around to see that
A.F. had shot himself.
Quinto-Pascual testified that while he was in a state of shock, he grabbed the
gun and wiped it down. He also picked up a pipe before leaving the house. He
placed the gun under a car in an alley behind the house, and fled on foot to a home
where his friends, J.C. and S.M., were staying. He waited there until S.M. let him
into the house. Eighteen minutes after arriving at the house, Quinto-Pascual called
the police when J.C. suggested he do so.
In a detailed ruling, the district court rejected Quinto-Pascual’s testimony and
found that he shot A.F. based on four categories of evidence. First, the court found
that expert testimony established that the gun was more than inches from A.F., and
that it was improbable that A.F. “contorted his body” to shoot himself. Second, the
court found, based on its inspection of the firearm, that it was implausible that a
single bullet remained in the firearm after the others were ejected, such that the gun
was loaded with one shell when A.F. handled it. Third, the court found that Quinto-
Pascual’s testimony was incredible and that his conduct after the shooting was
incriminating. Finally, the court found credible the testimony of three prosecution
witnesses who implicated Quinto-Pascual. Each witness testified that Quinto-Pascual
made statements that suggested or directly conveyed that he shot A.F. On appeal,
Quinto-Pascual complains that each of these findings was erroneous.
Quinto-Pascual first takes issue with the court finding it unlikely that the gun
was within inches of A.F.’s head. He concedes that the gun was not pressed against
A.F.’s head, but argues that the testimony of Dr. Dennis Firchau, the expert who
performed A.F.’s autopsy, established that the gun “could have been closer” than
inches. Although Dr. Firchau concluded that the range of fire was “indeterminate,”
the court’s finding was rooted in Dr. Firchau’s testimony on the absence of searing,
muzzle imprint, stippling, lacerations, or blowback of biological material. It is
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undisputed that these phenomena were not present, and we see nothing unreasonable
and impermissible in the court’s findings.
Dr. Firchau testified that muzzle imprint occurs when a gun is fired in contact
with skin, leaving an impression from a scrape or the blunt force of the gun. Searing
results when a closely held gun releases gases that burn the victim’s skin, and
lacerations appear when gases lift up and tear the victim’s skin. Blowback occurs
when biological material, such as blood, is flung back onto the gun. Dr. Firchau
testified that blowback is found in three-quarters of shootings at close range, and
Officer Brice Lippert, an investigator, testified that the lack of blowback ruled out a
self-inflicted shooting. That these effects were absent supports the finding that the
gun was not in “very close proximity” to A.F.
The absence of stippling supports the finding that it was unlikely that the gun
was within inches of A.F. Stippling appears when unburned gunpowder particles
penetrate the skin around a wound. Dr. Firchau testified that stippling occurs if a gun
is fired between a distance of one centimeter and two to three feet away from the
victim. He also testified that in a “typical” case, stippling should be seen if the gun
was held four inches from the victim. Quinto-Pascual asserts that hair surrounding
the wound might have prevented stippling, but Dr. Firchau testified that it would be
“still quite typical” to find stippling “even in parts of the scalp that are covered with
hair.”
To overcome this evidence, Quinto-Pascual points to the presence of soot. Dr.
Firchau testified that soot is a fine powder that forms when a gun is fired, and it can
appear around a wound if the gun is within twenty to thirty centimeters from the
victim. Soot can also be deposited from farther away, however, if a bullet travels
through a dirty muzzle of a gun, picks up the soot, and leaves the soot around the
wound and through the path of the wound. Dr. Firchau found soot-like material
around the wound and in the wound’s path, so the presence of soot was inconclusive
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on the issue of distance. With “two permissible views of the evidence” available,
there was no clear error. Anderson, 470 U.S. at 574.
Quinto-Pascual argues that the court erred by relying on the bullet’s trajectory.
We disagree. Dr. Firchau opined that the trajectory was right to left, back to front,
and upward, but testified that it was “difficult to speak on” whether the shooting was
self-inflicted. Officer Lippert, however, demonstrated how A.F. would have been
required to hold the gun in order to shoot himself. Lippert testified that it was not a
“comfortable natural position” and would become more uncomfortable as the distance
increased between gun and head. The court permissibly credited Officer Lippert’s
testimony in finding that it was improbable that A.F. “contorted his body” in order
to keep the gun “a fair distance from his head and yet shoot himself.”
Quinto-Pascual argues that the court improperly “qualified itself as a firearms
expert” when it rejected his theory that a bullet might have stuck in the gun when he
attempted to clear it before handing the gun to A.F. Quinto-Pascual’s testimony was
the only evidence that the gun’s ejection mechanism was defective. Although Officer
Lippert testified that he did not check whether the mechanism worked, he
demonstrated how the gun ejected bullets. He also testified that personnel at a
laboratory test-fired the gun and did not report any issues with the mechanism.
After this testimony, the court inspected the gun and observed that there was
“a single mechanism that ejects all the shells at the same time, and there’s no obvious
to me defects in the semicircles that would have captured the rings on the bottom of
the bullets.” The court gave counsel the option to “reexamine the firearm or . . . ask
any questions in light of my observations.” Quinto-Pascual asked no additional
questions on the mechanism, and he never contested the court’s observations. The
court then found that “the ejection mechanism of the weapon strongly suggests that
if there was a defect, it would have affected the ejection of all the shells, not just
one.” On appeal, Quinto-Pascual does not identify any persuasive evidence to the
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contrary. The court did not clearly err by rejecting Quinto-Pascual’s testimony on the
firearm.
Quinto-Pascual argues that A.F. might have loaded the gun himself. The court
did not clearly err in rejecting this theory. Officer Lippert testified that the gun
involved in the shooting was complex, and that even with knowledge on how to “rip
it open,” a person inexperienced with firearms would not have been able to load the
gun correctly and shoot himself within a matter of seconds. A.F.’s girlfriend, K.J.,
testified that A.F. was inexperienced with firearms and “did not feel comfortable
around guns, period.”
Quinto-Pascual next points to the fact that A.F.’s DNA was found on the
trigger of the firearm. The district court reasoned that the DNA did not alter its
finding because Quinto-Pascual “easily could have let the victim handle the
gun . . . and still shot the victim.” Although Quinto-Pascual disagrees with this
reasoning, the district court’s finding was a permissible view of the evidence and thus
not clearly erroneous.
Quinto-Pascual finally challenges the district court’s credibility findings. He
contends that the court erroneously discredited his testimony, and erred in finding that
K.J. and the other prosecution witnesses were credible. Credibility determinations
are virtually unreviewable on appeal, United States v. Tunley, 664 F.3d 1260, 1262
(8th Cir. 2012), and credibility is “not an all-or-nothing proposition.” United States
v. Cassidy, 6 F.3d 554, 557 (8th Cir. 1993).
The district court found that Quinto-Pascual’s testimony was “halting and
appeared calculated.” The court observed that the defendant “correct[ed] himself
multiple times” and “repeatedly glanced at the Court during his testimony,” consistent
with the actions of one who was “spinning a yarn and trying to see if the audience
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was buying it.” The court observed the defendant testify and thus had a comparative
advantage in evaluating his credibility. We see no clear error.
Quinto-Pascual argues that the district court improperly found that his
changing explanations to the police, his hiding of the gun under a car, and his delay
in calling police were incriminating. He emphasizes that he was under a “great deal
of stress” after the shooting, but claims that he testified truthfully at sentencing. The
court acknowledged Quinto-Pascual’s argument, but found that the evidence showed
an attempt to hide a murder. Officer Lippert testified that a person would have to lie
prone to place the gun under the car, and the court reasoned that Quinto-Pascual’s
initial decision to tell police that he “kicked” or “threw” the gun was an attempt to
avoid explaining that he carefully hid a murder weapon. The court explained that the
delay in calling police suggested that the defendant was “plotting” a story that “the
victim shot himself.” The court also observed that Quinto-Pascual initially denied
owning the gun, then claimed that the gun was on loan from another party, and finally
admitted that he traded methamphetamine for the gun. The court noted that despite
the defendant’s contention that A.F. showed him a methamphetamine pipe, a pipe was
never recovered from either person. The court gave cogent reasons for disbelieving
Quinto-Pascual’s testimony, and it was not clear error to reject the innocent
explanations.
Quinto-Pascual contends that the district court’s credibility determination was
based in part on an erroneous finding that fourteen minutes elapsed between the time
when he left the bar and when he appeared at the home of J.C. and S.M. The court
found it “highly unlikely” that the string of events described by Quinto-Pascual could
have “occurred in such a compressed period of time.” Officer Lippert determined
based on two videos—one taken inside of the bar and one recorded outside of the
house—that Quinto-Pascual left the bar no earlier than 12:35 a.m. and appeared at the
house at 12:49 a.m. He testified that although the time stamps on the videos were
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inaccurate, he was able to calculate the correct times. There was no clear error on this
point.
The district court also did not err in crediting K.J.’s testimony that Quinto-
Pascual and A.F. knew one another before the night of the shooting. Quinto-Pascual
points out that K.J. was incorrect that A.F. did not use methamphetamine, and the
defendant suggests that K.J. might have picked him out of a photo array after seeing
a news article with his picture. K.J. denied reading an article on the shooting, and her
testimony that A.F. never used methamphetamine does not undermine the court’s
decision to credit her testimony that A.F. and Quinto-Pascual were acquaintances.
The district court permissibly found credible three prosecution
witnesses—J.V., L.T., and C.S. Quinto-Pascual attacks the credibility of the
witnesses on various grounds: J.V. and L.T. were incorrect about where the firearm
was found and the crimes charged against Quinto-Pascual; L.T. was incorrect about
where Quinto-Pascual was located when he called the police; and the three witnesses
contradicted each other on whether they discussed the case among themselves. The
court credited the witnesses’ testimony because they did not provide “exaggerated
testimony,” two of the witnesses—L.T. and C.S.—did not seek “the authorities to
trade their information,” each witness was “consistent in general terms about [Quinto-
Pascual’s] involvement in the drug trade,” and “all three knew where the victim had
been shot,” even though that was not public information. There was no error in this
reasoning, and Quinto-Pascual’s arguments do not show that the testimony was “so
internally inconsistent or implausible on its face that a reasonable factfinder would
not credit it.” Anderson, 470 U.S. at 575.
In sum, the court did not clearly err in finding that Quinto-Pascual shot A.F.
Taken as a whole, the forensic evidence, expert testimony, and lay witness testimony
were sufficient to support the court’s finding and its corresponding application of the
sentencing guidelines. The judgment of the district court is affirmed.
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