United States v. Mason , 216 F. App'x 287 ( 2007 )


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  •                                UNPUBLISHED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    Affirmed by unpublished per curiam opinion.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    Unpublished opinions are not binding precedent in this circuit.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.
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    §§ 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]
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    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
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    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.
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    III.
    For the reasons set forth above, we affirm Mason’s convictions
    and sentence.
    AFFIRMED
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