United States v. Derrick Vernard Hand , 189 F. App'x 896 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
July 13, 2006
No. 05-15261 THOMAS K. KAHN
Argument Calendar CLERK
________________________
D. C. Docket No. 05-00149-CR-01-MHS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DERRICK VERNARD HAND,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(July 13, 2006)
Before ANDERSON, BARKETT and BOWMAN *, Circuit Judges.
*
Honorable Pasco M. Bowman, II, United States Circuit Judge for the
Eighth Circuit, sitting by designation.
PER CURIAM:
Derrick Vernand Hand appeals a condition of his sentence of five years’
probation after pleading guilty to a single count of theft of and interference with
United States mail. As a condition of his probation, Hand was ordered to submit to
DNA testing pursuant to the DNA Analysis Backlog Elimination Act of 2000, Pub.
L. No. 106-546, 114 Stat. 2726(“the 2000 DNA Act”), which required a narrow
group of federal offenders to submit DNA samples for analysis and storage in the
Bureau of Prisons’ Combined DNA Index System (“CODIS”). Id. § 3, 114 Stat. at
2728-30 (codified at 42 U.S.C. § 14135a). In 2004, Congress extended the DNA
collection program to offenders who commit “any felony” when it passed the
Justice for All Act of 2004, Pub. L. 108-405, § 203(b), 118 Stat. 2260, 2270 (“the
2004 DNA Act”). Hand argues that the court erred in applying the 2004 DNA Act
retroactively to his crimes, which were committed in 2003, although Hand was not
convicted until 2005. Hand also argues that the 2004 DNA Act violates his Fourth
Amendment right to be free from unreasonable searches and seizures.
We find that Hand’s claims that he now raises before us were not preserved
before the district court by his counsel’s mere statement that DNA testing may not
be “appropriate in this circumstance.” When a defendant fails to raise a criminal
claim in the district court, we review for plain error. See United States v. Olano,
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507 U.S. 725, 731-32 (1993). We may correct an error under the plain error
standard where (1) an error occurred, (2) the error was plain, (3) the error affects
substantial rights, and (4) “the error seriously affects the fairness, integrity or
public reputation of judicial proceedings.” Id., 507 U.S. at 732-36. In order to
qualify as “plain” error, the error must be “obvious” or “clear under current law.”
United States v. Candelario, 240 F.3d 1300, 1309 (11th Cir. 2001). “[W]here the
explicit language of a statute or rule does not specifically resolve an issue, there
can be no plain error where there is no precedent from the Supreme Court or this
Court directly resolving it.” See United States v. Lejarde-Rada, 319 F.3d 1288,
1291 (11th Cir. 2003).
Even assuming Hand is correct in arguing that the 2004 DNA Act has been
applied retroactively in his case, his claim fails under the second prong of the plain
error standard. Hand has not pointed to any case law from our Circuit or the
Supreme Court stating that (1) Congress has expressly prescribed the proper reach
of the 2000 DNA Act or 2004 DNA Act, or (2) the application of the 2004 DNA
Act or the 2000 DNA Act to an individual who committed an offense prior to the
enactment of the statute would have an impermissible retroactive effect.
Therefore, there was no plain error. See Lejarde-Rada, 319 F.3d at 1291.
The same is true of Hand’s challenge under the Ex Post Facto Clause.
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Neither we nor the Supreme Court have stated that the 2000 DNA Act or the 2004
DNA Act operates retroactively. Therefore, Rodriguez has failed to establish that
the district court's requiring him to provide a DNA sample was plain error.
Hand’s final argument—that the 2000 DNA Act, as amended, violates his
Fourth Amendment right to be free from unreasonable searches—is, as Hand
concedes, foreclosed by this Circuit’s decision in Padgett v. Donald, 401 F.3d 1273(11th Cir.), cert. denied, 126 S. Ct. 352 (2005), which held that the Georgia DNA
statute requiring incarcerated felons to submit saliva samples for DNA profiling
does not violate the Fourth Amendment. Because we see no meaningful
distinction between the Georgia statute and the federal DNA Act, we must follow
Padgett and deny Hand’s Fourth Amendment claim.
AFFIRMED.
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