United States Court of Appeals
Fifth Circuit
F I L E D
August 25, 2003
IN THE UNITED STATES COURT OF APPEALS
Charles R. Fulbruge III
Clerk
FOR THE FIFTH CIRCUIT
No. 02-40561
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES DANIEL CARMICHAEL,
Defendant-Appellant,
_________________________________
Consolidated with No. 02-21023
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GABRIEL BRANDON COLLINS,
Defendant-Appellant.
_________________________
Appeals from the United States District Court
For the Southern District of Texas
Before KING, Chief Judge, and HIGGINBOTHAM and STEWART, Circuit
Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
Appellants Gabriel Collins and James Carmichael both pleaded
guilty to federal bank robbery charges and are currently serving
terms of confinement in federal prison facilities. Both have
appealed their sentences because, pursuant to the DNA Analysis
Backlog Elimination Act of 2000 (“the DNA Act”), the sentences
require the collection of a DNA sample as a mandatory condition of
supervised release, a provision appellants urge is
unconstitutional. They further contend that an implied provision
of their sentence was the requirement, pursuant to the DNA Act,
that Bureau of Prison staff take DNA samples during their
incarceration, also violative of their constitutional rights. For
the following reasons we dismiss the appeal for failure to exhaust
administrative remedies and for unripeness.
I
In 1994, Congress authorized the Federal Bureau of
Investigation to create a national index of DNA samples taken from
convicted offenders, crime scenes, and unidentified human remains
which could be used by criminal justice agencies for law
enforcement identification, in judicial proceedings, and for
criminal defense purposes.1 As a result, the FBI established the
Combined DNA Index System (CODIS), which allows state and local
forensics laboratories to exchange and compare electronic DNA
profiles in order to match crime scene evidence to convicted
1
H.R. REP. No. 106-900, at 8 (2000), reprinted in 2000
U.S.C.C.A.N. 2323, 2324; Violent Crime Control and Law Enforcement
Act of 1994 § 210304, 42 U.S.C. § 14132(a), (b)(3).
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offenders on file in the system.2 By 2000, all fifty states had
enacted statutes requiring convicted offenders to provide DNA
samples for analysis and entry into CODIS.3 Samples taken from
federal offenders were not included in CODIS, however, “because the
language of the 1994 act only authorized the creation of the CODIS
system, and not the taking of samples from persons convicted of
Federal crimes.”4
To fill the gap left by the absence of federal offenders’ DNA
samples in CODIS, the FBI requested in 1998 that Congress “enact
statutory authority to allow the taking of DNA samples from persons
committing Federal crimes of violence, robbery, and burglary, or
similar crimes in the District of Columbia or while in the
military, and authorizing them to be included in CODIS.”5 In
response to the perceived need for inclusion of federal offender
samples in CODIS, in 2000 Congress passed the DNA Analysis Backlog
Elimination Act, which granted authority for collection of these
samples and also provided for federal grants to the states to
assist in reducing the backlog of biological samples waiting to be
analyzed in the state systems.6
2
H.R. REP. No. 106-900, at 8 (2000), reprinted in 2000
U.S.C.C.A.N. 2323, 2324.
3
Id.
4
Id.
5
Id. at 9, reprinted in 2000 U.S.C.C.A.N. 2323, 2324-25.
6
Id.
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Two provisions of the Act relating to collection of federal
offenders’ DNA are at issue in this appeal. The first provides
that “[t]he Director of the Bureau of Prisons shall collect a DNA
sample from each individual in the custody of the Bureau of Prisons
[BOP] who is, or has been, convicted of a qualifying Federal
offense ... or a qualifying military offense ....”7 Qualifying
offenses include “murder; voluntary manslaughter; other homicide
offenses; offenses relating to sexual abuse, sexual exploitation or
other abuse of children, and transportation for illegal sexual
activity; kidnapping; burglary; and any attempt or conspiracy to
commit those crimes.”8 BOP policies provide that offenders in its
custody are to be screened by local Community Corrections
Management Offices to determine whether they are qualified
offenders under the DNA Act.9 Once an inmate arrives at his
designated correction facility, the facility’s Health Services
staff will arrange to collect a DNA sample during the routine
physical examination.10
The Act also amended statutes relating to a district court’s
7
42 U.S.C. § 14135a(a)(1); see also 28 C.F.R. § 28.12(a)
(Department of Justice’s implementing regulations).
8
H.R. REP. No. 106-900, at 19 (2000), reprinted in 2000
U.S.C.C.A.N. 2323, 2334.
9
Memorandum from Michael B. Cooksey, Assistant Director,
Correctional Programs Division, et al., to all Chief Executive
Officers (Feb. 12, 2002).
10
Id.
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sentencing of federal offenders to probation or supervised release,
requiring district courts to impose as a mandatory condition that
the defendant cooperate in the collection of a DNA sample.11 The
amended supervised release provision reads, “[t]he court shall
order, as an explicit condition of supervised release, that the
defendant cooperate in the collection of a DNA sample from the
defendant, if the collection of such a sample is authorized
pursuant to ... the DNA Analysis Backlog Elimination Act of 2000.”12
The Administrative Office of the United States Courts has
instructed probation officers that they should not require an
offender on probation or supervised release to submit a sample if
the BOP obtained one during the offender’s incarceration.13 The DNA
Act makes the failure to cooperate in the taking of a sample a
11
18 U.S.C. §§ 3563(a)(9), 3583(d); H.R. REP. No. 106-900, at
21 (2000), reprinted in 2000 U.S.C.C.A.N. 2323, 2337 (“Section 7 of
the bill amends section 3563 of title 18 of the United States Code
to require Federal courts to order, as a condition of any imposed
term of probation, that defendants cooperate in the collection of
DNA samples authorized under the bill. It also amends section 3583
of title 18, United States Code, to require Federal courts to
order, as a condition of any imposed term of supervised release,
that defendants cooperate in the collection of DNA samples
authorized under the bill.”).
12
§ 3583(d); see also § 3563(a)(9) (“The [sentencing] court
shall provide, as an explicit condition of a sentence of probation
... that the defendant cooperate in the collection of a DNA sample
from the defendant if the collection of such a sample is authorized
pursuant to ... the DNA Analysis Backlog Elimination Act of
2000.”).
13
Memorandum from the Administrative Office of the United
States Courts, to all Chief Probation Officers (Dec. 14, 2001).
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misdemeanor offense.14
II
On November 8, 2001, James Carmichael robbed a bank in
Brownsville, Texas. Armed with a .357 handgun which he pointed at
a customer, he made off with approximately $17,000 in cash. When
apprehended several hours later, he admitted having robbed the
bank, and a search turned up the gun and the money. Carmichael was
indicted on counts of aiding and abetting bank robbery and using a
firearm during the commission of a bank robbery; he pleaded guilty
to both charges. The district court sentenced Carmichael to 117
months’ imprisonment and three years’ supervised release, and
ordered Collins to submit to DNA sampling in accordance with the
DNA Act.
On November 20, 2001, Gabriel Collins and an accomplice robbed
a bank in Katy, Texas. They passed a note to the teller stating
that they were armed and took $5,955 in cash. However, the cash
was rigged with a dye pack and bait bills, and the police
eventually tracked down Collins when he used dye-stained bills to
pay for auto repairs. Collins confessed to the robbery and pleaded
guilty to the single count of aiding and abetting bank robbery.
The district court sentenced him to thirty-seven months’
imprisonment and three years’ supervised release, and required that
pursuant to the DNA Act the probation officer be allowed to collect
14
42 U.S.C. § 14135a(a)(5); see also 28 C.F.R. § 28.12(c).
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DNA from Collins as a mandatory condition of supervised release.
Both Carmichael and Collins now appeal their sentences,
alleging that they should not be required to provide a DNA sample,
either in prison or on supervised release, because the DNA Act is
unconstitutional. Their actions were consolidated into this single
appeal.
III
Carmichael and Collins challenge the constitutionality of the
DNA Act on two grounds. First, they argue that the Act is an
unconstitutional exercise of congressional power; and, second, that
the Act is unreasonable under the Fourth Amendment, both as to
prisoners and as to criminals on supervised release. The
Government asserts that the appellants’ constitutional claim
relating to the DNA Act’s provision requiring collection of their
DNA while they are incarcerated relates to “conditions of
confinement,” which cannot be appealed on direct review but rather
must be brought in a separate civil action. It further contends
that the defendants’ claim regarding the portion of the Act
requiring collection of the DNA while they are on supervised
release is unripe for review, since the Act requires collection of
the appellants’ DNA samples while they are incarcerated so in all
likelihood they will not be asked to submit a sample while on
supervised release. We find the Government’s arguments persuasive.
A
Collins and Carmichael brought this direct appeal of their
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sentences under 18 U.S.C. § 3742, which authorizes, among other
things, appeal of a sentence imposed “in violation of law.”15 The
Government contends that the DNA’s mandate that the BOP collect DNA
samples from qualified federal offenders is not part of the
district court’s sentence. Rather, that portion of the Act
operates independently from appellants’ sentences. Because the DNA
Act is simply one of the myriad regulations of prison life, asserts
the Government, it amounts to a condition of confinement, which
Collins and Carmichael can challenge only in a separate civil
action filed after exhausting their administrative remedies.16
Like the Government, we conclude that neither the text of the
Act nor the legislative history suggests that district courts, at
sentencing, are to play any part in the collection of DNA samples
by BOP officials. The statute orders “[t]he Director of the Bureau
of Prisons” to “collect a DNA sample from each individual in the
custody of the Bureau of Prisons who is, or has been, convicted of
a qualifying Federal offense.”17 This provision demonstrates that
15
18 U.S.C. § 3742(a)(1).
16
See 18 U.S.C. § 3626 (describing appropriate remedies with
respect to prison conditions); 42 U.S.C. § 1997e(a) (Prison
Litigation Reform Act) (“No action shall be brought with respect to
prison conditions under section 1983 of this title, or any other
Federal law, by a prisoner confined in any jail, prison, or other
correctional facility until such administrative remedies as are
available are exhausted.”); see also Groceman v. U.S. Dep’t of
Justice, No. 3:01-CV-1619-G, 2002 WL 139559 (N.D. Tex. June 26,
2002) (civil action for injunctive relief brought by prisoners to
prevent the BOP from taking DNA samples).
17
§ 14135a(a)(1).
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the BOP not only has power to take the samples, but is vested with
the authority to determine who is eligible for DNA sampling. The
legislative history reinforces this interpretation by explaining
that the Act “direct[s] the Bureau of Prisons (BoP) to collect a
DNA sample from each person in federal custody who has been
convicted of certain felonies or sexual offenses.”18 That the Act
took prison sampling out of the sentencing court’s hands is
reinforced by its provisions relating to supervised release and
probation, which in contrast “require Federal courts to order, as
a condition of any imposed term of [probation or supervised
release], that defendants cooperate in the collection of DNA
samples authorized under the bill.”19
Collins and Carmichael argue that the DNA sampling requirement
is no different than statutes requiring restitution, criminal
forfeiture, or special assessments, which constitute part of a
criminal sentence. However, each of these statutes provide that
the district court “may” or “shall order” imposition of the
sanction,20 while the portion of the DNA Act relating to collection
18
H.R. REP. No. 106-900, at 14 (2000), reprinted in 2000
U.S.C.C.A.N. 2323, 2329 (emphasis added).
19
Id. at 21, reprinted in 2000 U.S.C.C.A.N. 2323, 2337; see
also id. at 14, reprinted in 2000 U.S.C.C.A.N. 2323, 2329 (“The
bill would direct the Judiciary to collect a DNA sample from each
person under federally supervised release who has been convicted of
certain felonies or sexual offenses.” (emphasis added)).
20
18 U.S.C. § 3663 (“The court, when sentencing a defendant
convicted of [certain offenses], may order, in addition to or, in
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of DNA samples during incarceration lacks reference to any role a
district court is to play in that process. We also reject their
contention that suits challenging conditions of confinement relate
only to complaints such as cell overcrowding and inadequate medical
care. Rather, the Supreme Court has instructed that suits
challenging conditions of confinement include prisoner petitions
alleging not only “continuous conditions,” but “isolated episodes
of unconstitutional conduct.”21 Stated another way, suits attacking
conditions of confinement implicate “all inmate suits about prison
life, whether they involve general circumstances or particular
episodes, and whether they allege excessive force or some other
wrong.”22 Accordingly, we hold that the DNA Act’s provision for the
BOP’s collection of federal offenders’ DNA during incarceration is
the case of a misdemeanor, in lieu of any other penalty authorized
by law, that the defendant make restitution to any victim of such
offense ....”); 18 U.S.C. § 3554 (“The court, in imposing a
sentence on a defendant who has been found guilty of [certain
offenses,] shall order ... that the defendant forfeit property to
the United States ....”); 18 U.S.C. § 1467 (“The court shall order
forfeiture of property ... if – (1) the trier of fact determines,
beyond a reasonable doubt, that such property is subject to
forfeiture ....”); 18 U.S.C. § 3013 (“The court shall assess on any
person convicted of an offense against the United States ....”).
21
McCarthy v. Bronson, 500 U.S. 136, 139 (1991); see also
Booth v. Churner, 206 F.3d 289, 294 (3d Cir. 2000) (“... [T]he
unanimous Court interpreted the ... ‘conditions of confinement’
language – one half of the definition of ‘prison conditions’ in §
3626(g)(2) – to include all inmate petitions, not only those
regarding ‘continuous conditions,’ but ‘isolated episodes of
unconstitutional conduct,’ such as the petitioner’s claim of
excessive force ....” (quoting McCarthy, 500 U.S. at 139)), aff’d,
532 U.S. 731 (2001).
22
Porter v. Nussle, 534 U.S. 516, 532 (2002).
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not part of appellants’ sentence, but is rather a prison condition
that must be challenged through a separate civil action after
exhaustion of administrative remedies.
B
The Government concedes that the DNA Act’s provisions relating
to collection of DNA samples during an offender’s probationary or
supervised release period are part of the appellants’ sentences,
because they require a sentencing court to impose DNA collection as
a mandatory condition of probation or supervised release. However,
the Government asserts that we must dismiss the remainder of the
appeal for lack of jurisdiction because appellants’ constitutional
claim regarding the DNA Act’s provisions for collection of the DNA
during supervised release is not yet ripe. Only if the BOP fails
to execute its statutorily-imposed duty to collect the sample will
appellants be required to submit to sampling during supervised
release. The Government posits that this renders the possibility
of DNA sampling during supervised release speculative, and in this
case ripeness considerations mitigate against premature
adjudication since we are called upon by the defense to render an
act of Congress unconstitutional.
“Ripeness separates those matters that are premature because
the injury is speculative and may never occur from those that are
appropriate for judicial review.”23 A claim is not ripe for review
23
United Transp. Union v. Foster, 205 F.3d 851, 857 (5th Cir.
2000).
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if “it rests upon contingent future events that may not occur as
anticipated, or indeed may not occur at all.”24 The Government
asserts that not only is it possible that the supervised release
condition appellants complain of will never come to fruition, but
it is likely, because unless the BOP “flouts the multiple layers of
legal obligations placed upon it,” by the time the appellants are
released it will already have collected a DNA sample from them in
accordance with the Act. We agree. This scenario is distinct from
those cases pointed to by appellants in which we have taken up
objections to supervised release conditions on direct appeal of the
sentence, because those related to conditions not contingent on
future events.25 Here it is a matter of conjecture whether either
Collins or Carmichael will be forced to submit to DNA sampling
during supervised release. We therefore dismiss the remainder of
this appeal for lack of jurisdiction.
24
Texas v. United States, 523 U.S. 296, 300 (1998) (internal
quotation marks omitted).
25
See United States v. Warden, 291 F.3d 363, 365 (5th Cir.
2002) (addressing whether the district court’s oral pronouncement
of supervised release conditions varied from its written
pronouncement, and whether the probation officer could determine
the defendant’s ability to pay for the court-ordered drug treatment
and other programs); United States v. Paul, 274 F.3d 155, 164-66
(5th Cir. 2001) (addressing the defendant’s challenge to special
conditions requiring him to avoid contact with minors, prohibiting
him from engaging in any occupation or volunteer service that would
expose him to minors, and instructing him to avoid places,
establishments, and areas frequented by minors); United States v.
Mills, 959 F.2d 516, 519 (1992) (evaluating a condition imposing an
occupational restriction).
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APPEAL DISMISSED.
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