United States Court of Appeals

Fifth Circuit



## FILED

August 25, 2003

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

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 J udge, and HIGGINBOTHAM and STEWART, Circuit

Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Appellants Gabriel Collins and James Carmichael both pleaded1 H.R. R EP

. No. 106-900, at 8 (2000), reprinted in 2 000

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).

-2- guilty to federal bank robbery charges and are currently serving

terms of conf inement 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 def ense purposes. 1 As a result, the FBI established the

Combine d DNA Index System (CODIS), which allows state and local

forensics labo r atories to exchange and compare electronic DNA

profiles in order to match crime scene eviden ce to convicted2 H.R. R EP

. No. 106-900, at 8 (2000), r eprinted 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.

-3- offenders on file in the system. 2 By 2000, all fifty states had

enacted statu t es requiring convicted offenders to provide DNA

samples for analysis and entry i nto 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 violen ce, robbery, and burglary, or

similar crimes in the District of Columbia or while in the

military, and author izing them to be included in CODIS.” 5 In

response to the perceived need fo r inclusion of federal offender

samples in CODIS, in 2000 Congress passed the DNA Analysis Backlog

Elimination Act, which granted authority for collecti on 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. 67 42 U.S.C. § 14135a(a)(1); see al so 2 8 C.F.R. § 28.12(a)

(Department of Justice’s implementing regulations).

8 H.R. R EP

. No. 106-900, at 19 (2000), r eprinted in 2000

U.S.C.C.A.N. 2323, 2334.

9 Memor andum from Michael B. Cooksey, Assistant Director,

Correctional Programs Division, et al., to all C hief Executive

Officers (Feb. 12, 2002).

10 Id.

-4- 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

o ther abuse of children, and transportation for illegal sexua l

activity; kidnapping; burglary; and any attempt or conspi racy 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’s11 18 U.S.C. §§ 3563(a)(9), 3583(d); H.R. R EP

. 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); s ee 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 Unit e d

States Courts, to all Chief Probation Officers (Dec. 14, 2001).

-5- sentencing of federal offenders to probation or supervised release,

requiring district courts to impose as a mandatory condition that

the de fendant cooperate in the collection of a DNA sample. 1 1 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 a14 42 U.S.C. § 14135a(a)(5); see also 28 C.F.R. § 28.12(c).

-6- 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 r obbed 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 rel e ase, 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 K aty, 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 co urt 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-7-

DNA from Collins as a mandatory condition of supervised release.

Both Carmichael and Collins no w 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 super vised 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 c ivil 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 o f their15 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) (P rison

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).

-8- 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 that18 H.R. R EP

. No. 106-900, at 14 (2000), r eprinted 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; s ee

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

-9- 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 “ d irect [ 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

r einforced 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 coope rate 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 asse ssments, which constitute part of a

c riminal 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 collectionthe 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); s ee 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 petitio ns, not only those

regarding ‘continuous conditions,’ but ‘isolated episodes of

unconstitutional conduct,’ s uch 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).

-10- 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 circumst ances 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 is23 United Transp. Union v. Foster

, 205 F.3d 851, 857 (5th Cir.

2000).

-11- 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 r equired 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 review24 Texas v. United States

, 523 U.S. 296, 300 (1998) (internal

quotation marks omitted).

2 5 See United States v. Warden

, 291 F.3d 363, 365 (5th Cir.

2002) (addressing whether the district court’s oral pronouncement

of supervise d release conditions varied from its written

pronounce ment, 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

ex pose 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).

-12- 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

t hose cases pointed to by appellants in which we have taken u p

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.-13-

APPEAL DISMISSED.