Unpublished

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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
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 courts 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,
convictions,
report
the
(PSR),
and
eventual
probation
calculating
officer
citizenship.
prepared
Glosters
After
the
pre-sentence
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.

2
On the counts
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,
Sentencing
but
Guidelines
less
Manual
than
$200,000,
2B1.1(a)(2),
under
(b)(1)
U.S.
(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
convictions:
the
peace
proceeding,
shoplifting,
and
convictions,
he
no
the
possession
disorderly
two
had
of
conduct,
operators
following
misdemeanor
marijuana,
six
license
disturbing
reckless
driving
convictions,
driving
while under the influence, refusing a blood or breath alcohol

test, driving on a suspended license, failure to obey a traffic
signal,
placed
and
in
possession
criminal
of
drug
history
paraphernalia.
category
Guidelines range of 33-41 months.
IV,
Gloster
with
was
resulting
Neither party objected to the
PSR.
Gloster
Guidelines range.
the
Guidelines
request.
requested
sentence
at
the
bottom
of
the
The Government requested a sentence within
range,
but
did
not
make
specific
sentence
The district court varied upward from the advisory
Guidelines range and imposed a 48-month sentence on count three,

3
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).
both
the
procedural
and
This review requires consideration of

substantive
reasonableness
of
Gall, 552 U.S. at 51.
sentence.
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.
U.S. at 56.
Gall, 552
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).
Gloster
only
attacks
his
sentence
substantive reasonableness of the variance.
based
on
the
Gloster contends
that his variance sentence is substantively unreasonable because

it is greater than necessary to punish him and is based on the
district courts perception of Glosters greed involved in the
offense, which he contends is already considered by the offense
level enhancement for amount of loss.
well
within
its
province
to
make
The district court was

a
factual
determination
regarding Glosters 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 Glosters greed, at sentencing

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

impose
sentence
six
years
longer
than
advisory
Guidelines
range was reasonable because district court employed 3553based reasoning to justify the variance).
We therefore affirm the sentence.
oral
argument
because
the
facts
5
and
legal
We dispense with
contentions
are
adequately
presented
in
the
materials
before
the
court
and
argument would not aid the decisional process.

AFFIRMED

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UNPUBLISHED

UNITED STATES COURT OF APPEALS

UNITED STATES OF AMERICA,

March 31, 2011

April 11, 2011

Before NIEMEYER, KING, and AGEE, Circuit Judges.

Affirmed by unpublished per curiam opinion.

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

Unpublished opinions are not binding precedent in this circuit.

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

Gloster argues that the

district courts upward variance sentence of seven months above

Shamel and his wife, Beryl, were charged in

a multiple-count conspiracy involving their alleged fraudulent

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

probation officer calculated the potential amount of loss at

For the conspiracy and false statement related to

naturalization counts, the offense level was 14.

of false claims, theft of public property, and false statement

Because the counts were closely related, the probation officer

while under the influence, refusing a blood or breath alcohol

Guidelines range of 33-41 months.

Neither party objected to the

The Government requested a sentence within

The district court varied upward from the advisory

Guidelines range and imposed a 48-month sentence on count three,

counts were 41 months to be served concurrently.

526 F.3d at 164

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

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

This review requires consideration of

Gall, 552 U.S. at 51.

After reviewing for procedural error, the court next

inquiry requires the court to review whether the District Judge

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

The court must take into account the totality of

the circumstances, including the extent of any variance from the

United States v. Morace, 594 F.3d 340, 346

substantive reasonableness of the variance.

that his variance sentence is substantively unreasonable because

The district court was

regarding Glosters motivation for the offense and to rely on

Moreover, the district court relied on several of the

3553(a) factors, in addition to Glosters greed, at sentencing

In particular, the court was concerned

with Glosters history of reckless driving, citing the worst

Because there was

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

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

366-67 (4th Cir. 2011) (holding sentencing courts decision to

argument would not aid the decisional process.

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