United States v. Derrick Vernard Hand ( 2006 )


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  •                                                            [DO NOT PUBLISH]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,
    2
    
    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.
    3
    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.
    4
    

Document Info

Docket Number: 05-15261

Judges: Anderson, Barkett, Bowman, Per Curiam

Filed Date: 7/13/2006

Precedential Status: Non-Precedential

Modified Date: 8/2/2023