[DO NOT PUBLISH]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”). 

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


, 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.” 

at 732-36. In order to

qualify as “plain” error, the error must be “obvious” or “clear under current law.”

United States v. Candelario, 

, 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, 

,

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 

.

      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, 

(11th Cir.), cert. denied, 

(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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