                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 05-3782
                                  ___________

United States of America,              *
                                       *
            Plaintiff - Appellee,      * Appeal from the United States
                                       * District Court for the
      v.                               * District of South Dakota.
                                       *
James Allen Gregg,                     *
                                       *
            Defendant - Appellant.     *
                                  ___________

                             Submitted: March 24, 2006
                                Filed: June 29, 2006
                                 ___________

Before BYE, RILEY, and SMITH, Circuit Judges.
                             ___________

BYE, Circuit Judge.

      James Allen Gregg appeals his convictions of second degree murder and
discharge of a firearm during and in relation to a crime of violence as well as the
sentences imposed by the district court.1 We affirm.




      1
        The Honorable Charles B. Kornmann, United States District Judge for the
District of South Dakota.
                                             I


       On the evening of July 3, 2004, and into the morning of July 4, 2004, Gregg,
a twenty-four year old veteran who served in Iraq, was spending time with friends on
the Crow Creek Reservation. Among his friends were James Fallis (James) and Jerrod
Fallis (Jerrod), twin brothers of Indian heritage, whom he had known since the fourth
grade.


       Gregg and others, including the Fallis brothers, had been drinking most of the
evening of July 3, 2004, at a bar, a residential trailer, and then finally, at a mint farm.
While at the mint farm, Gregg expressed interest in a woman who rejected him to
spend time with Jerrod. After receiving this rejection, Gregg and his friend Jacob Big
Eagle (Big Eagle) drove around the reservation. Upon their return, they found the
woman with Jerrod in James’s new car, leaving the mint farm. According to
witnesses, Gregg accelerated, spraying gravel onto James’s new car before returning
to the mint farm to rejoin the drinking party. Gregg testified he did not recall the
incident or spraying dust or gravel onto James’s car.


       When Jerrod returned to the mint farm, he confronted Gregg about the gravel
and informed his brother of the incident. The Fallis brothers, Gregg, and Big Eagle
attempted to ascertain the damage. Gregg said he saw no damage, but offered to pay
for any repairs resulting from sprayed gravel. There was a verbal altercation between
James and Gregg, which escalated when James pushed Gregg. Gregg was then
“sucker-punched” by James’s companion, Francis Red Tomahawk (Chaske). While
Gregg was on the ground, Chaske kicked Gregg in the head until he was stopped by
Brent Sazue. Neither James nor Jerrod kicked Gregg. However, when Gregg stood
up, James hit him one to three times and he fell back down.




                                           -2-
        After the fight, the party dispersed. Big Eagle, Sazue, and Jerrod, the only
persons remaining on the mint farm other than Gregg, helped Gregg to his feet.
Gregg, seeing his truck’s domelight lit, went to his truck. He returned from his truck
with a rifle, threatening Sazue and Jerrod. Big Eagle grabbed the rifle from Gregg and
put it into his truck. Sazue and Jerrod then approached Gregg and asked what was
wrong with him because, they claimed, friends do not pull guns on friends. Gregg
apologized and thereafter Jerrod invited Gregg and Big Eagle to celebrate
Independence Day with him and James. Jerrod and Sazue then left the mint farm.


       As Gregg was ready to depart, Big Eagle visited with him and noticed Gregg
was crying and upset. Gregg testified he was upset Big Eagle did not stand up for him
during the fight. Gregg testified Big Eagle said “[if] I didn’t stand up for you then,
I will now.” The two then departed the mint farm. Although Big Eagle had put
Gregg’s rifle into his car, at some point Gregg had retrieved the rifle. Gregg testified
he then drove to a bluff overlooking the Missouri River to think about the events
which had transpired when he noticed a rifle in his truck which did not appear to be
his, but appeared to be the type of automatic rifle used in Iraq. Reminded of Iraq, he
threw the rifle, along with the clips, into the river.2


       Gregg testified he became afraid Big Eagle would confront James and Jerrod
and went to look for him. In his search and approximately forty minutes after the
prior altercation, Gregg arrived at Chaske’s residential trailer where the group was
drinking the night before.3 Gregg saw James’s car and testified he decided to



      2
      Weeks after Gregg was indicted, his father turned the rifle over to the Federal
Bureau of Investigation (FBI) without informing the FBI how he obtained it.
      3
       Big Eagle was not present at Chaske’s residential trailer the prior evening; he
did not join the group until they were at the mint farm.

                                          -3-
apologize again to James because he was afraid of James and wanted to avoid a family
feud from forming. A witness testified to hearing Gregg ask where Chaske was.


        Upon arrival, James came out of the trailer, stating, “You come back for more
. . . You want to fight?” Gregg testified James then tried to pull Gregg out of his
truck. Other witnesses testified James opened the door, but then closed it
immediately. During the altercation, Gregg grabbed a pistol in his car and pointed it
at James, telling him to back away. Gregg testified James responded by saying, “You
want to fuck with guns? I got guns!” and then ran toward his truck. Three other
witnesses testified they heard James say the first sentence, but they did not hear him
say he had guns. As James was running away from the truck, Gregg shot at James
nine times, hitting him five times in the back and wounding him fatally. Gregg then
left the scene and called Big Eagle. Big Eagle informed Gregg that James had died.


       Gregg was indicted on charges of first degree murder on an Indian reservation
in violation of 18 U.S.C. §§ 1111, 1152, and discharge of a firearm during and in
relation to a crime of violence, in violation of 18 U.S.C. § 924(c). A jury found Gregg
not guilty of first degree murder, but found him guilty of second degree murder and
of discharging a firearm during a crime of violence. The district court sentenced
Gregg to 135 months for the second degree murder conviction and to the statutory
minimum of 120 months for the conviction of discharging a firearm during a crime
of violence. Pursuant to 18 U.S.C. § 924(c)(1)(D)(ii), the sentences were made to run
consecutively. Gregg now appeals his convictions and sentence.




                                         -4-
                                            II


                                            A


      Gregg challenges his convictions arguing he lacked the state of mind necessary
to support a conviction of second degree murder, the requisite crime of violence
supporting the firearm charge.4 Specifically, Gregg argues the district court erred by
excluding both general opinion and reputation evidence regarding James’s violent
nature as well as specific acts evidence of James’s alleged prior violent conduct.
Gregg argues this evidence goes both to whether James was the aggressor in the
confrontation and to Gregg’s state of mind.


       “We review the evidentiary rulings of a district court only for abuses of
discretion, and will reverse only when an improper evidentiary ruling affects the
substantial rights of the defendant or when we believe that the error has had more than
a slight influence on a verdict.” United States v. Ballew, 40 F.3d 936, 941 (8th Cir.
1994); see also United States v. Two Eagle, 318 F.3d 785, 794 (8th Cir. 2003) (“A
ruling on admissibility will not be reversed on appeal absent a clear and prejudicial
abuse of discretion.”). If the ruling is purely a legal interpretation of the Federal Rules
of Evidence, the ruling is reviewed de novo. See United States v. Smith, 383 F.3d
700, 706 (8th Cir. 2004).




      4
       Because Gregg’s challenges to the firearm charge depend upon the conclusion
the conviction of second degree murder was improper, we only address Gregg’s
conviction for second degree murder.

                                           -5-
                                            1


       Gregg argues the district court erred by preventing testimony from Gregg and
other witnesses regarding specific instances of James’s prior violent conduct to prove
James was the aggressor. The government, by motion in limine, sought to prevent
testimony regarding any specific act of violence committed by James. In response,
Gregg’s trial counsel notified the district court he did not intend to introduce such
specific acts evidence, but would only seek to introduce reputation evidence regarding
James’s violent character. The district court granted the motion in limine while
allowing Gregg to elicit reputation evidence regarding James’s violent character.


       A defendant can introduce evidence of a victim’s violent character to establish
conformity therewith in homicide cases where self-defense is raised. See Fed. R.
Evid. 404(a)(2) (“Evidence of a person’s character . . . is not admissible for the
purpose of proving action in conformity therewith . . . except: . . . [e]vidence of a
pertinent trait of character of the alleged victim of the crime offered by an accused,
or by the prosecution to rebut the same, or evidence of a character trait of peacefulness
of the alleged victim offered by the prosecution in a homicide case to rebut evidence
that the alleged victim was the first aggressor.”); United States v. Emeron Taken
Alive, 262 F.3d 711, 714 (8th Cir. 2001) (“When a defendant raises a self-defense
claim, reputation evidence of the victim’s violent character is relevant to show the
victim as the proposed aggressor.”); see also Smith v. United States, 161 U.S. 85, 88-
89 (1896) (“[E]vidence that the deceased had the general reputation of being a
quarrelsome and dangerous person, was competent [with regard to issue of self-
defense], especially if his character in this respect was known to the defendant . . . .”).


      However, a victim’s violent character is not an essential element of the charge
of murder or the defense of self-defense. See United States v. Talamante, 981 F.2d
1153, 1156 (10th Cir. 1992) (“When character evidence is used circumstantially to

                                           -6-
create an inference that a person acted in conformity with his or her character, Rule
405 allows proof of character only by reputation and opinion.”); Bingham v. Baker,
28 Fed. R. Evid. Serv. (CBC) 267, 272 (8th Cir. 1989) (per curiam) (“[The victim’s]
violent temper was only relevant as circumstantial evidence of his conduct, that is, as
evidence that [the victim] acted in conformity therewith.”); cf. United States v.
Swanson, 9 F.3d 1354, 1359 (8th Cir. 1993) (holding violent character of alleged
coercer is not an essential element to a coercion defense).


       While reputation and opinion evidence of a victim’s character may be used
whenever evidence of a victim’s character is admissible, Fed. R. Evid. 405(a),
evidence of specific instances of a victim’s prior conduct to prove action in
conformity therewith is only admissible “[i]n cases in which character or a trait of
character of a person is an essential element of a charge, claim, or defense.” Fed. R.
Evid. 405(b). Since a victim’s character is not an essential element of a defense of
self-defense, evidence of a victim’s character used to demonstrate the victim was the
aggressor is circumstantial in nature. Talamante, 981 F.2d at 1156; Fed. R. Evid.
404(a) advisory comm. notes (“Character evidence is susceptible of being used for the
purpose of suggesting an inference that the person acted on the occasion in question
consistently with his character. This use of character is often described as
‘circumstantial.’ Illustrations are: evidence of a violent disposition to prove that the
person was the aggressor in an affray. . . .”); Gibson v. Mayor and Council of City of
Wash., 355 F.3d 215, 232 (3d Cir. 2004) (“Character evidence does not constitute an
essential element of a claim or charge unless it alters the rights and liabilities of the
parties under the substantive law.”) (internal citations omitted); see also Bingham, 28
Fed. R. Evid. Serv. (CBC) at 272. “When character is used circumstantially and hence
occupies a lesser status in the case, proof may only be by reputation and opinion.”5


      5
       Although a line of cases permits defendants to use specific instance evidence
proving victims’ action in conformity therewith as the aggressor, this line of cases is
derived from the holding in United States v. Burks, 470 F.2d 432, 437 (D.C. Cir.

                                          -7-
Fed. R. Evid. 405 advisory comm. notes. Since James’s violent character is not an
essential element of a claim of self-defense, the district court properly excluded
evidence relating to specific instances of James’s violent conduct to prove James was
the aggressor in the altercation.


                                           2


      Gregg also argues the district court erred by not permitting him to elicit
testimony regarding specific acts of James’s violent conduct to establish Gregg’s state
of mind at the time of the shooting. Although specific acts evidence is not admissible
to prove a victim acted in conformity with his character under Rule 405(b),6 such

1972). Burks was decided before the Federal Rules of Evidence were adopted by the
Supreme Court on November 20, 1972, and before they became effective on July 1,
1973. Accordingly, Burks and its progeny are inapposite to our analysis of Rules
404(a) and 405, which limit the use of specific acts evidence to prove the victim acted
in conformity with the victim’s violent character.

      We believe the better rule is that articulated in United States v. Keiser, 57 F.3d
847, 855 (9th Cir. 1995) (holding specific acts evidence of a victim’s prior violent
conduct was relevant to prove the victim was the aggressor and therefore the
defendant acted in self-defense, but such evidence would not prove an essential
element of a self-defense claim and therefore should be excluded under Rule 405(b)),
and United States v. Saenz, 179 F.3d 686, 688 (9th Cir. 1999) (holding Rule 404(b)
does not exclude evidence related to specific instances of a victim’s prior violent
conduct when the defendant knew of the victim’s prior conduct at the time of the
alleged offense to show the defendant’s state of mind). We express no opinion
whether extrinsic evidence or additional testimony regarding the victim’s prior acts
may be introduced to corroborate defendant’s subjective fears of imminent injury.
      6
        Because Gregg never properly sought to admit specific acts evidence before
the district court, the district court was never presented with the issue for ruling. Had
the district court determined the evidence was proper under Rule 405, it may well
have determined the evidence should have been excluded under Rule 403. See United

                                          -8-
evidence may be admissible under Rule 404(b) to prove a defendant’s state of mind.
See United States v. Milk, __F.3d__, 2006 WL 1300598, at *5 (8th Cir. May 12,
2006) (recognizing evidence of specific prior bad acts is allowed under Rule 404(b)
in self-defense cases to prove state of mind, but affirming exclusion of such evidence
under Rule 403); United States v. Saenz, 179 F.3d 686, 688 (9th Cir. 1999) (holding
Rule 404(b) does not prohibit a defendant from presenting evidence of his knowledge
of a victim’s prior violent behavior or bad acts which caused defendant to have a
subjective fear of imminent grave injury); Virgin Islands v. Carino, 631 F.2d 226, 230
(3d Cir. 1980) (admitting knowledge of victim’s prior conviction as to state of mind
under Rule 404(b)); cf. United States v. Rocha, 916 F.2d 219, 241 (5th Cir. 1990)
(holding evidence of a defendant’s threat against an adverse witness related to the
validity of his duress defense and therefore was probative of something other than the
defendant’s character, making the evidence admissible under Rule 404(b)). Evidence
of specific instances of a victim’s prior violent conduct for purposes of proving a
defendant’s state of mind, however, is only admissible to the extent a defendant
establishes knowledge of such prior violent conduct at the time of the conduct
underlying the offense charged. See Saenz, 179 F.3d at 688.


       At trial, Gregg sought to make an offer of proof regarding what Gregg’s
testimony would have been, including his subjective fear of imminent grave injury.
The offer of proof stated, “[Gregg] would have testified that he believed that James
Fallis was tougher than he was, that he’s not a person that he would want to have a
fight with, that in his experience James Fallis could have beaten him up, and that he
would not have wanted to have an ongoing feud with James Fallis.” Tr. at 945. Trial
counsel specifically stated the offer of proof would go to Gregg’s state of mind. Id.
at 946. The offer of proof was refused by the district court.




States v. Waloke, 962 F.2d 824, 830 (8th Cir. 1992).

                                         -9-
       Gregg argues this offer of proof was improperly denied. The offer of proof,
however, identifies no specific instances of James’s prior conduct, let alone any such
instances known by Gregg at the time of the shooting. Accordingly, the district court
did not abuse its discretion in denying the offer of proof as to specific acts evidence
under Rule 404(b).7 Two Eagle, 318 F.3d at 794 (“Given the limited proof . . ., the
District Court did not abuse its discretion when it excluded the proffered evidence.”);
see also United States v. Kirkie, 261 F.3d 761, 767 (8th Cir. 2001) (“We will only
consider an offer of proof that is contained in the record.”) (internal citations omitted).


       Gregg also challenges the district court’s exclusion of testimony from other
witnesses regarding the reputation of James’s violent nature. Specifically, Gregg
challenges the district court’s limitation of Gregg’s direct examination of Todd Cowan
and Big Eagle. The district court limited Cowan’s testimony to describe James as
having a reputation in the community for violence and prevented him from testifying
to any specific instances of James’s violent conduct. Similarly, the district court
limited the testimony of Big Eagle to James having a reputation in the community for
hurting people and prevented him from testifying regarding any specific instances of
prior violent conduct.




      7
       Any error in denying the offer of proof regarding reputation or opinion
evidence would, in any event, be harmless because the offer presented no facts not
already before the jury. Cf. United States v. Martinez, 988 F.2d 685, 701-02 (7th Cir.
1993) (finding any error in not admitting defendant’s knowledge of the victim’s
reputation for violence to prove provocation in homicide case to be harmless where
jury had evidence of victim’s violent conduct already before it); United States v.
Cowan, 96 F.3d 1439 (4th Cir. 1996) (unpublished per curiam) (Table) (finding
harmless any error resulting from an exclusion of specific acts evidence where
reputation and opinion evidence of the victim’s violent character was admitted).

                                           -10-
       Gregg argues the district court should have permitted additional opinion and
reputation evidence from these witnesses.8 At trial, however, Gregg did not properly
seek to introduce additional reputation evidence. The district court sustained the
government’s objections to Gregg’s direct examination of these witnesses when the
responses elicited by the questions strayed from James’s violent character to that of
Jerrod. The district court did not abuse its discretion in sustaining the objections
because the violent character of Jerrod is not relevant to Gregg’s claim of self-defense
since Jerrod was not present during the altercation.


       Gregg made no offer of proof establishing about what these witnesses would
have testified absent the district court’s intervention. We are therefore left with no
record against which to review the district court’s exclusion of Gregg’s evidence.
Upon review of the transcript, we conclude the district court did not commit an abuse
of discretion or legal error in its evidentiary rulings.


                                           B


      Gregg also challenges the sentence imposed upon him by the district court. We
review the ultimate sentence for reasonableness. United States v. Sharpfish, 408 F.3d


      8
        Gregg also argues these witnesses should have been allowed to testify to
specific instances when James engaged in violent behavior. As noted above, character
evidence of specific instances of a victim’s violent conduct is inadmissible to prove
action in conformity therewith. While such specific instances, when known by the
defendant at the time of the offense, might be admissible to prove a defendant was
aware of a victim’s violent character, thereby coloring his subjective fears of
imminent grave injury, Gregg provided the district court with no offer of proof
establishing knowledge of any specific instance of violent conduct by James.
Accordingly, the district court did not abuse its discretion in refusing to permit
testimony of specific instances when James was violent.

                                         -11-
507, 510 (8th Cir. 2005). We review de novo “whether the district court correctly
applied the guidelines in determining a guidelines sentencing range.” United States
v. Mashek, 406 F.3d 1012, 1016-17 (8th Cir. 2005). If correctly applied, the Court
must “consider whether the sentence chosen by the district court was reasonable in
light of all the § 3553(a) factors.” Id. at 1017-18. The “primary point of reference”
in the reasonableness determination is the factors enumerated in 18 U.S.C. § 3553(a).
United States v. Hadash, 408 F.3d 1080, 1083 (8th Cir. 2005). A sentence is
unreasonable if the district court “fails to consider a relevant factor that should have
received significant weight, gives significant weight to an improper or irrelevant
factor, or considers only appropriate factors but nevertheless commits a clear error of
judgment by arriving at a sentence that lies outside the limited range of choice dictated
by the facts of the case.” United States v. Haack, 403 F.3d 997, 1004 (8th Cir. 2005).


       Gregg first argues his sentences are unreasonable because the district court did
not grant his motions for downward departure. Gregg sought four downward
departures: (1) aberrant behavior (United States Sentencing Guidelines (U.S.S.G.)
§ 5K2.20); (2) victim’s conduct (U.S.S.G. § 5K2.10); (3) diminished mental capacity
(post-traumatic stress disorder) (U.S.S.G. § 5K2.13); and (4) military record, family
obligation, and employment history. For each departure, the district court recognized
it had the authority to depart, but declined to do so. Contrary to Gregg’s assertions,
United States v. Booker, 543 U.S. 220 (2005), did not change the fact a denial of a
motion for downward departure is not reviewable unless the district court believes it
was without authority to depart. See United States v. Frokjer, 415 F.3d 865, 875 (8th
Cir. 2005). Because we are without authority to review the downward departure
denials, we conclude the district court correctly determined the applicable advisory
Guideline range.


     Once the district court determined the applicable advisory Guideline range, it
imposed consecutive sentences of 135 months for the second degree murder

                                          -12-
conviction and 120 months for the firearm conviction. The district court correctly
determined 18 U.S.C. § 924(c)(1)(D)(ii) required the application of consecutive
sentences, and correctly applied the mandatory minimum sentence required by statute
for Gregg’s firearm conviction. Gregg argues post-Booker, a district court has
discretion to determine whether the ultimate sentence imposed is reasonable and
therefore may impose a non-Guideline sentence even when a portion of the sentence
is the result of a mandatory minimum sentence. See United States v. Alexander, 381
F. Supp. 2d 884, 889-90 (E.D. Wis. 2005) (Post-Booker, “courts . . . may take into
account the distortions created by mandatory minimums in order to avoid imposing
a total sentence that would, under the circumstances of the particular case, be contrary
to the goals of the [Sentencing Reform Act].”). This argument, however, is
unavailing, because Booker does not relate to statutorily-imposed sentences. See
United States v. Warford, 439 F.3d 836, 845 (8th Cir. 2006); United States v. Rojas-
Coria, 401 F.3d 871, 874 n.4 (8th Cir. 2005).


       Finally, Gregg argues his sentence is unreasonable because the district court did
not adequately consider the extenuating “nature and circumstances of the offense”
under 18 U.S.C. § 3553(a). Because the district court was without discretion to
impose concurrent sentences or a sentence for the firearm conviction below the
mandatory minimum, we consider Gregg’s argument as it applies to his sentence for
the second degree murder conviction. Gregg’s advisory Guideline range for the
second degree murder conviction was 135 to 168 months. The district court imposed
a sentence of 135 months.


       Gregg argues the district court erred by not considering the contributing
conduct of James to the confrontation and the ultimate shooting. On this issue, the
district court stated, “I do not place any credence under the facts of this case in any of
the victim misconduct.” The district court considered the victim’s contribution to the
confrontation and concluded, based upon disputed facts in the record, the victim’s

                                          -13-
contribution warranted neither a downward departure from the advisory Guideline
range nor the imposition of a lower, non-Guideline sentence. Based upon the disputed
facts before the court, we conclude the district court did not clearly err in making its
factual findings.


       The district court conducted a very thorough review of the factors of § 3553(a)
and determined the low-end of the advisory Guideline range was an appropriate
sentence under the circumstances. In so concluding, the district court noted various
aggravating and mitigating factors. Specifically, the district court determined under
the facts of the case, Gregg could have been convicted of first degree murder and
noted its concern several of the shots fired by Gregg entered a trailer where people
resided and endangered nearby children. The district court also refused to apply two
sentencing enhancements: (1) obstruction of justice for false testimony to law
enforcement officials, and (2) reckless endangerment of the safety of the arresting
officers by resisting arrest. The district court also acknowledged Gregg may well be
suffering from post-traumatic stress, but concluded Gregg, at the time of the
altercation, was not of a mental state which would warrant the application of a
diminished mental capacity departure. Finally, the district court noted Gregg’s history
and characteristics were favorable to him.


      After considering the district court’s application of the Guidelines and the
§ 3553(a) factors, we agree with the district court a sentence of 135 months is
reasonable for Gregg’s second degree murder conviction.


      We therefore affirm the district court.
                        ______________________________




                                         -14-
