                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 05-4500



UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee,

           versus


DANE A. MASON,

                                                 Defendant - Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Parkersburg. Joseph Robert Goodwin,
District Judge. (CR-04-127)


Argued:   September 21, 2006                 Decided:   February 2, 2007


Before WILKINS, Chief Judge, KING, Circuit Judge, and HAMILTON,
Senior Circuit Judge.


Affirmed by unpublished per curiam opinion.


ARGUED: Matthew Anthony Victor, Charleston, West Virginia, for
Appellant.   Richard Gregory McVey, OFFICE OF THE UNITED STATES
ATTORNEY, Huntington, West Virginia, for Appellee.      ON BRIEF:
Charles T. Miller, Acting United States Attorney, Huntington, West
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

      Dane Anthony Mason appeals his convictions and sentence for

various drug offenses, as well as a forfeiture order of the

district court.     Finding no error, we affirm.



                                        I.

      Beginning in 1998 or 1999, Kirt King sold cocaine in and

around Parkersburg, West Virginia.            Mario Mason, Appellant Mason’s

brother, was also selling cocaine in the area at that time.                   King

and   Mario    joined   forces,   and       the    resulting   drug    conspiracy

continued until its members were arrested on June 2, 2004.

      Mason was an active member of the conspiracy, albeit one with

a limited role. Tim Wise, a confidential informant working for the

task force investigating the conspiracy, made three controlled

purchases of cocaine from Mason in April and June 2004.                    For each

purchase, Wise paid Mason $300 and received one quarter-ounce of

cocaine.      During the second purchase, Wise and Mason drove from

Mason’s home to King’s residence; Mason went inside while Wise

remained in the vehicle.       When Mason returned with the cocaine, he

described it as “fire” and stated that “[i]t came out of the middle

of the kilo.”     J.A. 688.

      Based on the foregoing evidence, a jury convicted Mason of one

count of conspiring to distribute more than 500 grams of cocaine

and   three    counts   of   distributing         cocaine.     See    21   U.S.C.A.


                                        2
§§ 841(a)(1), 846 (West 1999).           He was sentenced to 63 months

imprisonment and five years of supervised release.              Due to his

convictions, Mason was also subject to a criminal forfeiture order.

See 21 U.S.C.A. § 853 (West 1999 & Supp. 2006); Fed. R. Crim. P.

32.2(b)(1).   The district court entered a forfeiture order against

Mason in the amount of $22,200, $21,300 of which was the estimated

street value of the remaining kilogram of cocaine involved in the

second controlled purchase.


                                   II.

                                    A.

     First, Mason argues that the district court committed error by

failing to instruct the jury on the lesser-included offense of

conspiracy to distribute less than 500 grams of cocaine.                  A

decision by the district court to give or not to give a jury

instruction is reviewed for abuse of discretion. See United States

v. Russell, 971 F.2d 1098, 1107 (4th Cir. 1992).

     For   Mason   to   be   entitled    to    a   lesser-included   offense

instruction, he must show that “the proof of the element that

differentiates the two offenses [is] sufficiently in dispute that

the jury could rationally find [him] guilty of the lesser offense

but not guilty of the greater offense.”            United States v. Walker,

75 F.3d 178, 180 (4th Cir. 1996).             The requisite dispute exists

when “the testimony on the distinguishing element [is] sharply

conflicting, or ... the conclusion as to the lesser offense [is]

                                    3
fairly inferable from the evidence presented.”                   Id.    Mason argues

that he was entitled to a lesser-included offense instruction

because there was no evidence that he “possess[ed] or distribute[d]

more than 500 grams of cocaine.”               Br. of Appellants at 13.

      We disagree.        Mason conceded that he participated in drug

purchase transactions with Wise and others. The evidence presented

at   trial   showed    that   the    conspiracy      was    a    longstanding        one,

operating for approximately five years.                    In addition, evidence

showing that it was responsible for distributing more than 500

grams   of      cocaine    was      not   contradicted           by    the     defense.

Consequently, there is no differentiating element of the offenses

in   dispute,    and   Mason     cannot       show   he    was    entitled      to   the

instruction.      Therefore, the district court did not abuse its

discretion.

                                          B.

      Next, Mason contends that the district court erred when it

refused to grant him a reduction for acceptance of responsibility

because he was willing to plead guilty to distributing less than

500 grams of cocaine.            See United States Sentencing Guidelines

Manual § 3E1.1 (2005).         We disagree.

      A decision by the district court whether to grant a reduction

for acceptance of responsibility is a factual determination that

will not be reversed unless it is clearly erroneous.                         See United

States v. Greenwood, 928 F.2d 645, 646 (4th Cir. 1991).                          To be


                                          4
entitled to receive a reduction under § 3E1.1, Mason must show that

he has clearly recognized and affirmatively accepted “personal

responsibility     for    his   criminal    conduct.”      United    States    v.

Martinez, 901 F.2d 374, 377 (4th Cir. 1990).                    Ordinarily, a

defendant who puts the government to its burden of proof at trial

is not entitled to the reduction.           See U.S.S.G. § 3E1.1, comment.

(n.2).

      Mason acknowledges the general rule that one who proceeds to

trial is precluded from receiving a reduction for acceptance of

responsibility,     but    he   maintains    that    his   circumstances      are

exceptional.   We disagree.       As discussed previously, the evidence

overwhelmingly established Mason’s involvement in a conspiracy to

distribute more than 500 grams of cocaine.                 Therefore, Mason’s

offer to plead guilty to a lesser offense is not consistent with

acceptance of responsibility for his criminal conduct.

                                      C.

      Last, Mason argues that the forfeiture order imposed by the

district court violates the Excessive Fines Clause of the Eighth

Amendment.   Again, we disagree.       We review the question of whether

the   forfeiture    was    constitutionally         excessive   de    novo    and

underlying factual determinations for clear error.                   See United

States v. Bajakajian, 524 U.S. 321, 336 & n.10 (1998).

      The Eighth Amendment provides that “[e]xcessive bail shall not

be required, nor excessive fines imposed, nor cruel and unusual


                                      5
punishments inflicted.”          U.S. Const. amend. VIII.       “[A] punitive

forfeiture violates the Excessive Fines Clause [when] it is grossly

disproportional” to the criminal conduct.          Bajakajian, 524 U.S. at

334.    To determine whether the forfeiture is disproportionate, a

court “must compare the amount of the forfeiture to the gravity of

the defendant’s offense.”         Id. at 336-37.    A defendant bears the

burden of proving that the forfeiture imposed is excessive.               See

United States v. Ahmad, 213 F.3d 805, 816 (4th Cir. 2000).

       It is well established that members of a conspiracy are liable

for the foreseeable criminal conduct of other members of the

conspiracy.      See Pinkerton v. United States, 328 U.S. 640, 647

(1946).     This principle also applies to forfeiture, which is “an

element of the defendant’s sentence.”          United States v. McHan, 101

F.3d   1027,    1043   (4th   Cir.   1996)   (internal    quotation   marks   &

alteration omitted).

       After considering the factors set forth in Bajakajian, we are

satisfied      that    Mason’s    $22,200    forfeiture    is   not   grossly

disproportionate to the gravity of his offense.             It is clear that

the criminal activity in which Mason was involved was extensive,

long-term, and serious. The gravity of Mason’s offenses is evident

in the statutory punishment provisions, which allow for a maximum

sentence of 40 years and a fine of up to $2 million.                   See 21

U.S.C.A. § 841(b)(1)(B).         It is also clear that the extent of the

criminal activity was reasonably foreseeable to Mason.


                                       6
                               III.

     For the reasons set forth above, we affirm Mason’s convictions

and sentence.


                                                          AFFIRMED




                                7
