USCA4 Appeal: 24-4258 Doc: 25 Filed: 10/25/2024 Pg: 1 of 5

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 24-4258

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

KARIVA CROSS,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Newport News. Arenda L. Wright Allen, District Judge. (4:17-cr-00118-AWA-DEM-2)

Submitted: October 22, 2024 Decided: October 25, 2024

Before KING and WYNN, Circuit Judges, and TRAXLER, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

ON BRIEF: Jamison P. Rasberry, RASBERRY LAW, PC, Virginia Beach, Virginia, for Appellant. Brian James Samuels, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Newport News, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 24-4258 Doc: 25 Filed: 10/25/2024 Pg: 2 of 5

PER CURIAM:

Kariva Cross appeals the district court’s judgment revoking her term of supervised

release and sentencing her to 24 months’ imprisonment. On appeal, Cross’s counsel has

filed a brief pursuant to Anders v. California,

(1967), stating that there are no

meritorious grounds for appeal but questioning the procedural reasonableness of the

sentence. Cross has filed a pro se supplemental brief challenging the substantive

reasonableness of her sentence. * The Government has declined to file a response brief.

We affirm.

“A district court has broad . . . discretion in fashioning a sentence upon revocation

of a defendant’s term of supervised release.” United States v. Slappy,

(4th Cir. 2017). “We will affirm a revocation sentence if it is within the statutory maximum

and is not plainly unreasonable.”

(internal quotation marks omitted). “To

consider whether a revocation sentence is plainly unreasonable, we first must determine

whether the sentence is procedurally or substantively unreasonable.”

Even if a

revocation sentence is unreasonable, we will reverse only if it is “plainly so.”

(internal quotation marks omitted).

A district court imposes a procedurally reasonable sentence by “considering the

Sentencing Guidelines’ nonbinding Chapter Seven policy statements and the applicable 18

* Cross also contends that her counsel performed deficiently at the revocation hearing. Because evidence of counsel’s alleged “ineffectiveness does not conclusively appear on the face of the record,” this claim “should be raised, if at all, in a motion under

.” United States v. Barnett,

, 222 n.3 (4th Cir. 2022).

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(a) factors,” “adequately explain[ing] the chosen sentence,” and

“meaningfully respond[ing] to the parties’ nonfrivolous arguments” for a different

sentence.

(footnote omitted). And a court complies with substantive

reasonableness requirements by “sufficiently stat[ing] a proper basis for its conclusion that

the defendant should receive the sentence imposed.”

(internal quotation marks

omitted).

Anders counsel questions whether the district court relied too heavily on the

seriousness of Cross’s supervision violations. “[A] district court may not impose a

revocation sentence based predominately on the seriousness of the releasee’s violation

. . . .” United States v. Webb,

(4th Cir. 2013). However, the court may

consider, “to a limited degree, the seriousness of the underlying violation,” as long as the

sentence “sanction[s] primarily the defendant’s breach of [the court’s] trust.” U.S.

Sentencing Guidelines Manual ch. 7, pt. A(3)(b), p.s. (2023); accord Webb,

. Because Cross did not contest the court’s sentencing explanation below, we review

only for plain error. Webb,

.

In the underlying proceeding, Cross pleaded guilty to aggravated identity theft and

conspiracy to commit bank fraud. While on supervised release, Cross participated in—and

later pleaded guilty to—a wire fraud conspiracy arising out of fraudulent Paycheck

Protection Program applications. See United States v. Boler,

, 320 n.1 (4th

Cir. 2024) (discussing Paycheck Protection Program). After correctly calculating a policy

statement range of 4 to 10 months’ imprisonment, the district court imposed a substantial

upward variance sentence, highlighting both the substantial trust initially placed in Cross

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and the egregious breach of that trust occasioned by her subsequent violations. First, the

court recalled how well Cross presented at her original sentencing, leading the court to

conclude that she would never offend again. As a result, Cross received several benefits,

including a downward variance sentence and a delay to her prison start date so that she

could take care of her children. But Cross badly betrayed the court’s confidence by

engaging in new criminal conduct that, in the court’s view, was far worse than Cross’s

original crimes. Still, the court repeatedly emphasized that Cross’s severe breach of trust

was the driving force behind its sentencing decision. Accordingly, we discern no plain

error in the court’s sentencing decision.

Next, Anders counsel questions whether the district court erroneously found that

Cross participated in the wire fraud conspiracy while in prison. We review this

unpreserved factual argument for plain error. Davis v. United States,

(2020) (per curiam). Here, as the district court noted, the indictment alleged that the

conspiracy began when Cross was still incarcerated, though it did not specify when Cross

joined the conspiracy. Even assuming arguendo that the court erred, under the

circumstances of this case, we discern no basis for concluding that such error affected

Cross’s substantial rights, as necessary to establish plain error. See United States v.

Claybrooks,

(4th Cir. 2024).

Finally, Cross challenges the substantive reasonableness of her sentence. Given

Cross’s swift return to fraudulent conduct after receiving favorable treatment during her

original sentencing proceeding, we readily conclude that the district court’s upward

variance sentence was warranted to reflect the depth of Cross’s incredible breach of trust.

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In accordance with Anders, we have reviewed the entire record in this case and have

found no meritorious issues for appeal. We therefore affirm Cross’s revocation judgment.

This court requires that counsel inform Cross, in writing, of the right to petition the

Supreme Court of the United States for further review. If Cross requests that a petition be

filed, but counsel believes that such a petition would be frivolous, then counsel may move

in this court for leave to withdraw from representation. Counsel’s motion must state that

a copy thereof was served on Cross.

We dispense with oral argument because the facts and legal contentions are

adequately presented in the materials before this court and argument would not aid the

decisional process.

AFFIRMED

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