                                                      [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                                                                 FILED
                       ________________________ U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                                                                August 30, 2005
                              No. 05-10109
                                                          THOMAS K. KAHN
                          Non-Argument Calendar               CLERK
                        ________________________

                 D. C. Docket No. 04-00160-CR-J-16-MCR

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

GUILLERMO RODRIGUEZ-BENAVIDES,
a.k.a. Guillermo B. Rodriguez,

                                                          Defendant-Appellant.


                        ________________________

                 Appeal from the United States District Court
                     for the Middle District of Florida
                      _________________________

                             (August 30, 2005)

Before BLACK, WILSON and PRYOR, Circuit Judges.

PER CURIAM:

     Guillermo Rodriguez-Benavides (“Rodriguez”) appeals his 46-month
sentence for illegal reentry without permission after deportation, in violation of

8 U.S.C. § 1326.

      Rodriguez’s first argument on appeal is that he pled guilty to the crime of

illegal reentry under 8 U.S.C. § 1326(a), which carries a maximum sentence of two

years, but was sentenced for the crime of reentry after deportation following an

aggravated felony conviction under 8 U.S.C. § 1326(b)(2), which carries a

maximum sentence of twenty years. Rodriguez contends that § 1326(b)(2),

authorizing a prison term of up to twenty years, defines a separate crime and not an

enhancement for crimes committed pursuant to § 1326(a). Therefore, because

Rodriguez was convicted under § 1326(a), he purports that his sentence cannot

exceed two years. Rodriguez concedes that Almendarez-Torres v. United States,

523 U.S. 224, 247, 118 S. Ct. 1219, 1233 (1998), a case which addressed this exact

issue, held that an indictment charging a defendant with a violation of 8 U.S.C. §

1326(a) need not allege a defendant’s prior aggravated felony conviction to

enhance a sentence based on that aggravated felony pursuant to § 1326(b)(2).

However, Rodriguez argues that the district court erred because Apprendi v. New

Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), and its progeny indicate that a

majority of the Supreme Court no longer supports the holding of Almendarez-

Torres.



                                           2
      Next, Rodriguez argues that because his offense was committed in 2002, two

years before Congress amended 42 U.S.C. § 14135a to require all felons to provide

a DNA sample, the application of § 14135a to his case would have an

impermissible retroactive effect.

      Finally, Rodriguez raises a Fourth Amendment challenge to § 14135a, but

concedes on appeal that we upheld an “almost identical” state DNA profiling

statute against a Fourth Amendment challenge in Padgett v. Donald, 401 F.3d

1273 (11th Cir. 2005), and that there is no meaningful distinction between that

statute and the federal statute in question here.

                                           I.

      First, Rodriguez claims that he pled guilty to the crime of illegal reentry

under 8 U.S.C. § 1326(a), which carries a maximum sentence of two years, but was

sentenced for the crime of reentry after deportation following an aggravated felony

conviction under 8 U.S.C. § 1326(b)(2), which carries a maximum sentence of

twenty years. Rodriguez contends that § 1326(b)(2), authorizing a prison term of

up to twenty years, defines a separate crime and not an enhancement for crimes

committed pursuant to § 1326(a). Therefore, because Rodriguez was convicted

under § 1326(a), he purports that his sentence cannot exceed two years.

      The Supreme Court addressed this issue in Almendarez-Torres, 523 U.S. at



                                            3
226, 118 S. Ct. at 1222. There, the Supreme Court held that § 1326 (b)(2) “is a

penalty provision, which simply authorizes a court to increase the sentence . . . [i]t

does not define a separate crime.” Id. at 226, 118 S. Ct. at 1222. To date,

Almendarez-Torres remains good law. Therefore, we conclude that the district

court did not err in enhancing Rodriguez’s sentence under § 1326(b)(2).

      The Supreme Court declined to revisit Almendarez-Torres in Apprendi,

holding that, “[o]ther than the fact of a prior conviction, any fact that increases the

penalty for a crime beyond the prescribed statutory maximum must be submitted to

a jury, and probed beyond a reasonable doubt.” Apprendi, 530 U.S. at 489-90, 120

S. Ct. at 2362-63. Recently, in Booker, 543 U.S. ___, 125 S. Ct. 738, 756, the

Supreme Court reaffirmed Apprendi and left undisturbed its holding in

[Almendarez-Torres v. United States, 523 U.S. 224, 227, 118 S. Ct. 1219, 1233

(1998)], that recidivism is not a separate element of an offense that the government

is required to prove beyond a reasonable doubt.” United States v. Orduno-Mireles,

405 F.3d 960, 962 (11th Cir. 2005).

      While recent decisions, including Shepard v. United States, 544 U.S. ____,

125 S. Ct. 1254 (2005), may arguably cast doubt on the future prospects of

Almendarez-Torres, the Supreme Court has not explicitly overruled Almendarez-

Torres, and, as a result, we must follow Almendarez-Torres. See United States v.



                                            4
Camacho-Ibarquen, 410 F.3d 1307, 1316 n.3 (11th Cir. 2005). Further, Rodriguez

does not successfully distinguish his case from Almendarez-Torres. The fact that

the defendant in Almendarez-Torres admitted that he was deported due to

convictions for three aggravated felonies, as opposed to Rodriguez’s admission to

only one previous state conviction for a crime that allegedly was an aggravated

felony does not adequately distinguish the instant case from Almendarez-Torres.

       Because Almendarez-Torres remains controlling precedent, the district court

did not err in enhancing Rodriguez’s sentence under § 1326(b)(2). Upon review of

the record and consideration of the parties’ briefs, we find no reversible error as to

this issue.

                                          II.

       Rodriguez next argues that because his offense was committed in 2002, two

years before Congress amended 42 U.S.C. § 14135a to require all felons to provide

DNA samples to the Bureau of Prisons or to the probation office, the application of

§ 14135a to his case had an impermissible retroactive effect. Rodriguez contends

that the DNA sampling requirement imposes a new duty or obligation on him

which carries serious consequences.

       When a defendant fails to raise a criminal claim in the district court, we

review for plain error. See United States v. Olano, 507 U.S. 725, 731-32, 113 S.



                                           5
Ct. 1770, 1776 (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, 113 S. Ct. at 1777-79. 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).

      The DNA Identification Act of 1994, part of the Violent Crime Control and

Law Enforcement Act of 1994, authorized the Federal Bureau of Investigation to

create an index of DNA samples from persons convicted of crimes. DNA

Identification Act of 1994, § 210304(a), Pub. L. No. 103-332, 108 Stat. 1796. The

DNA Analysis Backlog Elimination Act of 2000 (“2000 DNA Act”) authorized the

collection of DNA samples from federal prisoners, parolees, and probationers.

DNA Analysis Backlog Elimination Act of 2000, § 3, Pub. L. No. 106-546, 114

Stat. 2726 (2000) (codified at 42 U.S.C. § 14135a). The 2000 DNA Act authorized

the collection of a DNA sample from persons convicted of a limited number of



                                            6
offenses, including murder, sexual abuse, sexual exploitation or abuse of children,

and robbery or burglary. Id. The Justice For All Act of 2004 (“2004 DNA Act”)

amended 42 U.S.C. § 14135a to expand the list of qualifying offenses for

collection of DNA samples to include any felony, any offense under chapter 109A

of Title 18, any crime of violence, and any attempt or conspiracy to commit any of

those offenses. Justice For All Act of 2004, § 203, Pub. L. No. 108-405, 118 Stat.

2260 (codified at 42 U.S.C. 14135a(d)).

        The Supreme Court has explained that “the presumption against retroactive

legislation is deeply rooted in our jurisprudence.” Landgraf v. USI Film Prods.,

511 U.S. 244, 265, 114 S. Ct. 1483, 1496 (1994). In determining whether a civil

statute is impermissibly retroactive, we must look to (1) whether Congress has

expressly prescribed the statute’s proper reach, and, if not, (2) whether the new

statute would have retroactive effect, i.e., whether it would impair rights a party

possessed when he acted, increase a party’s liability for past conduct, or impose

new duties with respect to transactions already completed. Id. at 280, 114 S. Ct. at

1505.

        While the Supreme Court was not explicit in its holding, Landgraf has been

construed as applying to the retroactivity of civil statutes. See Exxon Mobil Corp.

v. Allapattah Svcs., Inc., 545 U.S. __, 125 S. Ct. 2611, 2629. It is the Ex Post



                                           7
Facto Clause that applies to the retroactive applications of criminal statutes.

Landgraf, 511 U.S. at 266. To prevail on an ex post facto claim, a defendant must

show “both that the law he challenges operates retroactively (that it applies to

conduct before its enactment) and that it raises the penalty from whatever the law

provided when he acted.” Johnson v. United States, 529 U.S. 694, 699, 120 S. Ct.

1795, 1800 (2000). Because Rodriguez improperly construed his claim as a

challenge under Landgraf and did not raise an ex post facto challenge to the

application of the 2004 DNA Act, this argument is abandoned on appeal and

deemed waived. See Rowe v. Schreiber, 139 F.3d 1381, 1382 n.1 (11th Cir. 1998).

       Assuming Rodriguez was correct in arguing that the Landgraf analysis

applies in this case and the district court’s decision should be reviewed for plain

error, his claim fails under the second prong of the plain error standard. Rodriguez

has not pointed to any caselaw 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, 319 F.3d at 1291.

      Even assuming that Rodriguez construed his challenge under the Ex Post



                                           8
Facto Clause, his claim would fail under the plain error test. Neither we nor the

Supreme Court have stated that the 2000 DNA Act or the 2004 DNA Act operates

retroactively. See id. Therefore, Rodriguez has failed to establish that the district

court’s requiring him to provide a DNA sample was plain error. Accordingly we

affirm as to this issue.

                                           III.

         Rodriguez finally argues that 42 U.S.C. § 14135a violates his Fourth

Amendment rights. Rodriguez concedes that we upheld a nearly identical state

DNA profiling statute against a Fourth Amendment challenge in Padgett v.

Donald, 401 F.3d 1273 (11th Cir. 2005), and that there is no meaningful

distinction between that statute and the federal statute at issue in this case.

However, Rodriguez raises the Fourth Amendment issue to preserve it for later

review.

         We review de novo a district court’s legal conclusions as to the

constitutionality of a statute. Doe v. Kearney, 329 F.3d 1286, 1293 (11th Cir.

2003).

         In Padgett, we held that the Georgia statute, which required convicted,

incarcerated felons to provide a sample of their DNA to the Georgia Department of

Corrections for analysis and storage in a data bank maintained by the Georgia



                                            9
Bureau of Investigation, did not violate the Fourth Amendment. Padgett, 401 F.3d

at 1280. We applied a totality of the circumstances analysis to determine whether

the Georgia statute was reasonable. We held that “Georgia’s legitimate interest in

creating a permanent identification record of convicted felons for law enforcement

purposes outweighs the minor intrusion involved in taking prisoners’ saliva

samples and storing their DNA profiles, given prisoners’ reduced expectation of

privacy in their identities.” Id.

       There is no meaningful distinction between the Georgia statute analyzed in

Padgett and the federal DNA statute at issue in this case. The statutes are similar

in almost every respect. They only differ slightly in their specificity of the means

authorized for obtaining a sample. Because the Georgia and federal DNA statutes

are analogous, our reasoning under Padgett applies. Therefore, we find no error as

to this issue.

       For the foregoing reasons, we affirm the district court’s ruling.

       AFFIRMED.




                                          10
