United States v. Bean ( 2007 )


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  •                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
    File Name: 07a0060n.06
    Filed: January 24, 2007
    No. 05-6760
    UNITED STATES COURT OF APPEALS
    FOR THE SIXTH CIRCUIT
    UNITED STATES OF AMERICA,                                )
    )        ON APPEAL FROM THE
    Plaintiff-Appellee,                               )        UNITED STATES DISTRICT
    )        COURT FOR THE EASTERN
    v.                                                       )        DISTRICT OF TENNESSEE
    )
    JIMMY S. BEAN,                                           )                          OPINION
    )
    Defendant-Appellant.                              )
    BEFORE:          MARTIN, COLE, and GILMAN, Circuit Judges.
    R. GUY COLE, JR., Circuit Judge. Defendant-Appellant Jimmy S. Bean appeals the
    district court’s order requiring him to provide a DNA sample incident to his federal drug conviction
    and as a condition of his supervised release. The DNA Analysis Backlog Elimination Act of 2000
    (the “DNA Act” or “Act”), 42 U.S.C. §§ 14135a-14135d (2005), requires Bean to provide DNA
    samples under these circumstances. Bean contends that mandatory DNA sampling violates his
    Fourth and Fifth Amendment rights. For the reasons discussed below, we AFFIRM the district
    court’s order.
    I. BACKGROUND
    On February 2, 2004, Bean pleaded guilty to distributing crack cocaine in violation of 
    21 U.S.C. §§ 841
    (a)(1) and (b)(1)(C). At the initial sentencing hearing on August 2, 2004, the district
    No. 05-6760
    United States v. Bean
    court concluded Bean was a career offender under the United States Sentencing Guidelines. The
    district court imposed a prison term of 188 months, based upon a Guideline range of 188 to 235
    months.
    Bean appealed and, following the Supreme Court’s decision in United States v. Booker, 
    543 U.S. 220
     (2005), this Court granted the parties’ joint motion to remand the case for resentencing
    under the now-advisory Guidelines. On October 31, 2005, the district court resentenced Bean to 151
    months in prison and six years of supervised release. Additionally, a 2004 amendment to the DNA
    Act required Bean to provide a DNA sample to the Bureau of Prisons. The amended Act further
    required DNA samples as a condition of his supervised release. On appeal, Bean contends that this
    compulsory DNA sampling violates the Fourth and Fifth Amendments to the United States
    Constitution.
    II. DISCUSSION
    A.     The DNA Act
    In 2000, Congress enacted the DNA Act, which required federal authorities to collect DNA
    samples from individuals in custody and while on probation, parole, or supervised release after being
    convicted of certain violent crimes. 42 U.S.C. § 14135a (2000). Under the Act, the Bureau of
    Prisons collects DNA samples from individuals in the Bureau’s custody, and the probation offices
    collect DNA samples from individuals on probation, parole, or supervised release. 42 U.S.C. §§
    14135a(a)(1)(B), (a)(2) (2005). These entities then submit the DNA samples to the Federal Bureau
    of Investigation for inclusion in its Combined DNA Index System (“CODIS”). 42 U.S.C. §
    14135a(b) (2005). An individual’s failure to submit to DNA collection under the Act constitutes a
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    United States v. Bean
    class A misdemeanor subject to punishment according to Title 18 of the United States Code. 42
    U.S.C. § 14135a(a)(5) (2005). In 2004, Congress amended the Act, expanding the list of qualifying
    offenses to include “[a]ny felony.” 42 U.S.C. § 14135a(d) (2005).
    B.       Bean’s Challenges to the Act
    1.     Fourth-Amendment Challenge
    After the briefs were filed in this appeal, the Court requested the parties file letter briefs
    addressing how this Court’s decision in United States v. Conley, 
    453 F.3d 674
     (6th Cir. 2006), which
    joins other circuits in holding the DNA Act constitutional under the Fourth Amendment, affects
    Bean’s appeal. In his letter brief, Bean concedes that Conley forecloses his arguments, noting that
    “defendant is unable to point to any fact or authority materially distinguishing his appeal.” He
    further states as follows: “Unless a different panel feels strongly enough to revisit the issue, or
    garner[s] enough votes to re-examine the issue en banc, defendant has no basis beyond what has
    already been presented to the Court in this case, or what was presented in Conley[,] to argue a
    different result is warranted.” Thus, as Bean concedes, Conley forecloses his argument.
    2.     Fifth-Amendment Challenge
    Without relevant citation or analysis, Bean contended in his original brief that compulsory
    DNA sampling also violates his Fifth Amendment “right against self-incrimination, right against the
    unlawful taking of his property, and right to due process.” Although Bean’s subsequent letter brief
    does not make the point, Conley did not involve a Fifth Amendment challenge, so Conley does not
    foreclose this particular argument. Bean’s Fifth Amendment challenge, however, is also without
    merit.
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    United States v. Bean
    Bean did not raise his Fifth Amendment arguments in the district court. Accordingly, he
    must demonstrate that the district court committed plain error when ordering his DNA sample. See
    United States v. Swanberg, 
    370 F.3d 622
    , 627 (6th Cir. 2004) (holding that plain-error review applies
    where defendant did not raise sentencing objection in district court). But he fails to show error, plain
    or otherwise.
    As an initial matter, because Bean provides no citations or substantive argument to support
    his Fifth Amendment argument, it is waived. See Figueroa-Rubio v. INS, 
    108 F.3d 110
    , 112 (6th
    Cir. 1997) (declining to address due-process argument where immigration petitioner failed to cite
    authority in support and mentioned the argument in passing only); accord United States v. Hook, __
    F.3d __, No. 06-1362, 
    2006 U.S. App. LEXIS 30526
    , at *15 (7th Cir. Dec. 13, 2006) (holding that
    defendant waived Fifth Amendment due-process challenge to DNA Act by failing to provide
    “citation support or substantive argument”).
    Moreover, were this Court to reach the merits of this undeveloped argument, Bean would fare
    no better. First, the sampling does not violate Bean’s right against self-incrimination. In Schmerber
    v. California, 
    384 U.S. 757
     (1966), the Supreme Court held that blood-test evidence, although
    potentially incriminating, is neither testimony nor evidence relating to any communicative act and
    therefore does not implicate the Fifth Amendment privilege. 
    Id. at 764-65
    . For this reason, the
    Seventh Circuit (in a decision citing this Court’s Conley decision with approval) and Ninth Circuit
    recently held that requiring DNA samples under the DNA Act does not violate a defendant’s Fifth
    Amendment right against self-incrimination. United States v. Reynard, __ F.3d __, No. 02-50476,
    
    2007 U.S. App. LEXIS 665
    , at *32-33 (9th Cir. Jan. 12, 2007) (citing Schmerber, 
    384 U.S. 757
    );
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    United States v. Bean
    Hook, __ F.3d at __, 
    2006 U.S. App. LEXIS 30526
    , at *15-16 (same); accord Boling v. Romer, 
    101 F.3d 1336
    , 1341 (10th Cir. 1996) (DNA samples are not testimonial in nature); cf. Kyger v. Carlton,
    
    146 F.3d 374
    , 381 n.2 (6th Cir. 1998) (citing United States v. Bridges, 
    499 F.2d 179
    , 184 (7th Cir.
    1974), for the proposition that “[s]wabbing, like drawing the defendant’s blood in Schmerber . . . was
    not a violation of the Fifth Amendment’s protection against self-incrimination, since the swabbing
    did not provide the state with evidence of a testimonial or communicative nature”). We reach the
    same conclusion.
    Second, the sampling does not violate Bean’s right against deprivation of property without
    due process. Due-process challenges to the Act have been consistently rejected by the courts. See,
    e.g., United States v. Hugs, 
    384 F.3d 762
    , 768-69 (9th Cir. 2004) (holding that condition of
    supervised release that requires DNA testing under the Act is not unconstitutionally vague and
    therefore meets procedural due-process requirements); Johnson v. Quander, 
    370 F. Supp. 2d 79
    , 89-
    93 (D.D.C. 2005) (holding that DNA Act violates neither substantive nor procedural due process
    under the Fifth Amendment), aff’d, 
    440 F.3d 489
    , 503 (D.C. Cir. 2006) (concluding that Fifth
    Amendment challenge to DNA Act is “without merit and do[es] not warrant separate discussion”).
    Indeed, this Court has held that providing an inmate with notice and an opportunity to be heard when
    a DNA blood sample is taken under Ohio’s DNA-collection statute affords adequate procedural
    protections for the kind of “de minim[i]s” taking involved. Williams v. Dep’t of Rehab. & Corr., 3
    F. App’x 415, 417 (6th Cir. 2001) (unpublished order).
    In sum, Bean’s Fifth Amendment challenges to the DNA Act also fail.
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    III. CONCLUSION
    For the foregoing reasons, we AFFIRM the district court’s order requiring Bean’s
    compulsory DNA sampling under the DNA Act.
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