UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 10-4444

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

SHAMEL L. GLOSTER,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern 

District of Virginia, at Norfolk. Rebecca Beach Smith, District 

Judge. (2:09-cr-00094-RBS-FBS-1)

Submitted: March 31, 2011 Decided: April 11, 2011

Before NIEMEYER, KING, and AGEE, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Michael S. Nachmanoff, Federal Public Defender, Walter B. 

Dalton, Assistant Federal Public Defender, Caroline S. Platt, 

Research and Writing Attorney, Norfolk, Virginia, for Appellant. 

Neil H. MacBride, United States Attorney, Joseph L. Kosky, 

Assistant United States Attorney, Norfolk, Virginia, for 

Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Shamel Gloster appeals the forty-eight month sentence 

imposed for convictions for conspiracy to defraud the United 

States, in violation of 18 U.S.C. § 371 (2006), false claim, in 

violation of 18 U.S.C. § 287 (2006), theft of public property, 

in violation of 18 U.S.C. § 641 (2006), making a false 

statement, in violation of 18 U.S.C. § 1001 (2006), and making a 

false statement related to naturalization and citizenship, in 

violation of 18 U.S.C. § 1015 (2006). Gloster argues that the 

district court’s upward variance sentence of seven months above 

the Sentencing Guidelines range was substantively unreasonable. 

Finding no error, we affirm.

Gloster was a service member in the United States Navy 

from 2000 to 2009. Shamel and his wife, Beryl, were charged in 

a multiple-count conspiracy involving their alleged fraudulent 

marriage in an attempt to gain dependent pay for Shamel through 

the Navy and for Beryl, a Kenyan citizen, to receive permanent 

resident status, and eventual citizenship. After the 

convictions, the probation officer prepared a pre-sentence 

report (PSR), calculating Gloster’s advisory Sentencing 

Guidelines range to be thirty-three to forty-one months. The 

probation officer calculated the potential amount of loss at 

$137,862.16. For the conspiracy and false statement related to 

naturalization counts, the offense level was 14. On the counts 
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of false claims, theft of public property, and false statement 

related to the theft of public property, the base offense level 

was 6, with a 10-level increase because the amount of loss was 

more than $120,000, but less than $200,000, under U.S. 

Sentencing Guidelines Manual § 2B1.1(a)(2), (b)(1) (2009). 

Because the counts were closely related, the probation officer 

determined that the final combined adjusted offense level was 

16.

Although Gloster had not been convicted of a felony 

prior to this proceeding, he had the following misdemeanor 

convictions: shoplifting, possession of marijuana, disturbing 

the peace and disorderly conduct, six reckless driving 

convictions, two no operator’s license convictions, driving 

while under the influence, refusing a blood or breath alcohol 

test, driving on a suspended license, failure to obey a traffic 

signal, and possession of drug paraphernalia. Gloster was 

placed in criminal history category IV, with a resulting 

Guidelines range of 33-41 months. Neither party objected to the 

PSR.

Gloster requested a sentence at the bottom of the 

Guidelines range. The Government requested a sentence within 

the Guidelines range, but did not make a specific sentence 

request. The district court varied upward from the advisory 

Guidelines range and imposed a 48-month sentence on count three, 
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theft of public property. The sentences for the remaining 

counts were 41 months to be served concurrently.

In United States v. Evans, 526 F.3d 155, 164 (4th Cir. 

2008), this court explained that, “no matter what provides the 

basis for a deviation from the Guidelines range[,] we review the 

resulting sentence only for reasonableness.” 526 F.3d at 164 

(citing Gall v. United States, 552 U.S. 38, 50 (2007)). In 

doing so, the court applies an abuse of discretion standard. 

Gall, 552 U.S. at 51; see also United States v. Llamas, 599 F.3d 

381, 387 (4th Cir. 2010). This review requires consideration of 

both the procedural and substantive reasonableness of a 

sentence. Gall, 552 U.S. at 51. 

After reviewing for procedural error, the court next 

assesses the substantive reasonableness of the sentence. This 

inquiry requires the court to review “whether the District Judge 

abused his discretion in determining that the [18 U.S.C.] § 

3553(a) [2006] factors supported [the sentence] and justified a 

substantial deviation from the Guidelines range.” Gall, 552 

U.S. at 56. The court must take “‘into account the totality of 

the circumstances, including the extent of any variance from the 

Guidelines range.’” United States v. Morace, 594 F.3d 340, 346

(4th Cir.) (quoting Gall, 552 U.S. at 51), cert. denied, 131 S. 

Ct. 307 (2010). 
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Gloster only attacks his sentence based on the 

substantive reasonableness of the variance. Gloster contends 

that his variance sentence is substantively unreasonable because 

it is greater than necessary to punish him and is based on the 

district court’s perception of Gloster’s greed involved in the 

offense, which he contends is already considered by the offense 

level enhancement for amount of loss. The district court was 

well within its province to make a factual determination 

regarding Gloster’s motivation for the offense and to rely on 

that determination, in part, to justify its decision to vary 

upward. Moreover, the district court relied on several of the 

§ 3553(a) factors, in addition to Gloster’s greed, at sentencing 

to support its decision. In particular, the court was concerned 

with Gloster’s history of reckless driving, citing the worst 

driving record it had seen in twenty years and that Gloster 

appeared to have little respect for the law. Because there was 

no abuse of discretion in doing so, this court defers to that 

reasoning. See United States v. Diosdado-Star, 630 F.3d 359, 

366-67 (4th Cir. 2011) (holding sentencing court’s decision to 

impose a sentence six years longer than advisory Guidelines 

range was reasonable because district court employed § 3553-

based reasoning to justify the variance). 

We therefore affirm the sentence. We dispense with 

oral argument because the facts and legal contentions are 
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adequately presented in the materials before the court and 

argument would not aid the decisional process. 

AFFIRMED