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Bonnie Davis v. Michael Rao
583 F. App'x 113
4th Cir.
2014
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Bonnie Newman DAVIS, Plaintiff-Appellant, v. Michael RAO, PhD., individually; L. Terry Oggel, PhD., individually; Fred M. Hawkridge, PhD., individually; Beverly J. Warren, PhD., individually; Cynthia K. Kirkwood, Pharm.D., individually, Defendants-Appellees.

No. 13-2493

United States Court of Appeals, Fourth Circuit

Sept. 5, 2014

Submitted: Aug. 27, 2014.

583 F. App‘x 113

generally inadmissible, Fed.R.Evid. 802, a statement by a coconspirator is not hearsay if it was made “during the course and in furtherance of the conspiracy and is offered against the party.” United States v. Graham, 711 F.3d 445, 453 (4th Cir.) (internal quotation marks and citation omitted), cert. denied, --- U.S. ---, 134 S.Ct. 449, 187 L.Ed.2d 300 (2013); see also Fed.R.Evid. 801(d)(2)(E).

“A statement by a co-conspirator is made in furtherance of a conspiracy if it was intended to promote the conspiracy‘s objectives, whether or not it actually has that effect.” Graham, 711 F.3d at 453 (internal quotation marks omitted). A statement may be “in furtherance of the conspiracy even though it is susceptible of alternative interpretations and was not exclusively, or even primarily, made to further the conspiracy, so long as there is some reasonable basis for concluding that it was designed to further the conspiracy.” United States v. Shores, 33 F.3d 438, 444 (4th Cir.1994) (internal quotation marks omitted).

We conclude that the coconspirator statements in question were made in furtherance of the conspiracy to distribute cocaine and cocaine base. The statements were made after the confidential informant had initiated the drug transaction. While the informant‘s statements were not admissible under this exception, United States v. Hackley, 662 F.3d 671, 679 (4th Cir.2011), they were offered to provide necessary context to the coconspirator‘s statements regarding Moore, not for the truth of the matter asserted. We therefore find no error in the district court‘s admission of this testimony.

Finally, Moore asserts that he was improperly designated a career offender because his prior convictions were not submitted to the jury and proved beyond a reasonable doubt. As Moore concedes, this argument is foreclosed by the Supreme Court‘s decisions in Almendarez-Torres v. United States, 523 U.S. 224, 239-47, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), and Alleyne v. United States, --- U.S. ---, 133 S.Ct. 2151, 2163, 186 L.Ed.2d 314 (2013).

Accordingly, we affirm. We dispense with oral argument because the facts and legal contentions are adequately presented in the material before this Court and argument will not aid the decisional process.

AFFIRMED.

Scott G. Crowley, Sr., Crowley & Crowley, Glen Allen, for Appellant. Mark R. Herring, Attorney General of Rhodes B. Ritenour, Deputy Attorney General, Peter R. Sydney Edmund Rab, Senior Assistant Attorneys General, Virginia, for Appellees.

Before NIEMEYER and AGEE, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Affirmed by unpublished PER CURIAM opinion.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:

Bonnie N. Davis filed a civil complaint against a number of Virginia Commonwealth University (“VCU“) administrators, alleging that Defendants violated her due process rights in denying her application for tenure and promotion to the position of associate professor at VCU. Davis appeals the district court‘s order granting Defendants’ Fed.R.Civ.P. 12(b)(6) motion to dismiss.

We review de novo a district court‘s ruling on a Rule 12(b)(6) motion, accepting factual allegations in the complaint as true and drawing all reasonable inferences in favor of the nonmoving party. Kensington Volunteer Fire Dep‘t v. Montgomery Cnty., 684 F.3d 462, 467 (4th Cir.2012). To survive a Rule 12(b)(6) motion to dismiss, a complaint must contain sufficient “facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).

To state a procedural due process claim, Davis must allege that: (1) she had a “constitutionally cognizable life, liberty, or property interest;” (2) Defendants deprived her of that interest; (3) and “the procedures employed were constitutionally inadequate.” Sansotta v. Town of Nags Head, 724 F.3d 533, 540 (4th Cir.2013). Property interests “are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law.” Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). To possess a property interest, a claimant “must have more than a unilateral expectation of it. [Sh]e must, instead, have a legitimate claim of entitlement to it.” Id.

On appeal, Davis argues that even in the absence of a protected property interest, she was entitled to a fair review process under VCU‘s Promotion and Tenure Review Guidelines. Despite Davis’ assertions to the contrary, demonstrating a protected liberty or property interest is a threshold requirement for establishing a Due Process claim. See Sansotta, 724 F.3d at 540. Moreover, “[p]rocess is not an end in itself. Its constitutional purpose is to protect a substantive interest to which the individual has a legitimate claim of entitlement.” Olim v. Wakinekona, 461 U.S. 238, 250, 103 S.Ct. 1741, 75 L.Ed.2d 813 (1983). Tenure review procedures, without more, do not give rise to a protected property interest. Siu v. Johnson, 748 F.2d 238, 244 n. 11 (4th Cir.1984) (concluding that such a claim “is a circular one” and thus “conceptually unacceptable“). Because Davis has not alleged any property interest distinguishable from the tenure review procedures provided by VCU, we conclude that she has not demonstrated the threshold requirement that she was deprived of a protected property or liberty interest.

Accordingly, we affirm the district court‘s judgment. 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.

Case Details

Case Name: Bonnie Davis v. Michael Rao
Court Name: Court of Appeals for the Fourth Circuit
Date Published: Sep 5, 2014
Citation: 583 F. App'x 113
Docket Number: 13-2493
Court Abbreviation: 4th Cir.
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