                    FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No. 06-50506
                Plaintiff-Appellee,                D.C. No.
               v.                             CR-06-00096-FMC-
GREGORY MICHAEL ZIMMERMAN,                            02
             Defendant-Appellant.
                                                  OPINION

        Appeal from the United States District Court
            for the Central District of California
      Florence Marie Cooper, District Judge, Presiding

                    Argued and Submitted
             August 7, 2007—Pasadena, California

                    Filed December 18, 2007

Before: Alex Kozinski, Chief Judge, Johnnie B. Rawlinson,
Circuit Judge, and Harold Baer, Jr.,* Senior District Judge.

                       Per Curiam Opinion




   *The Honorable Harold Baer, Jr., Senior United States District Judge
for the Southern District of New York, sitting by designation.

                                16473
                UNITED STATES v. ZIMMERMAN             16475


                        COUNSEL

Gail Ivens, Deputy Federal Public Defender; Sean K. Ken-
nedy, Federal Public Defender, Los Angeles, California, for
the defendant-appellant.

Beong-Soo Kim, Assistant United States Attorney; George S.
Cardona, Acting United States Attorney; Thomas P. O’Brien,
Assistant United States Attorney; Lorna Li, Special Assistant
United States Attorney; Andrea L. Russi, Assistant United
States Attorney, Los Angeles, California, for the plaintiff-
appellee.
16476            UNITED STATES v. ZIMMERMAN
                         OPINION

PER CURIAM:

  We consider whether compelling a criminal defendant to
give a blood sample for DNA testing could violate his rights
under the Religious Freedom Restoration Act (RFRA).

                            Facts

   Zimmerman pled guilty to knowingly possessing equip-
ment to make false identification documents. See 18 U.S.C.
§ 1028(a)(5). He was sentenced to three years probation and
compelled to provide a DNA sample pursuant to the Justice
for All Act of 2004 (2004 DNA Act). See 42 U.S.C.
§ 14135a. Zimmerman objected to giving a DNA sample,
relying on RFRA, and on the First, Fourth and Fifth Amend-
ments. The district court rejected all of Zimmerman’s objec-
tions and held that Zimmerman’s DNA could be extracted
through a blood sample. Zimmerman appeals and we have
jurisdiction under 28 U.S.C. § 1291.

                          Analysis

   [1] 1. Zimmerman argues that extraction of a blood sample
would violate rights guaranteed to him by RFRA and the First
Amendment’s Free Exercise Clause because his religious
beliefs prevent him from “giv[ing] blood” or “provid[ing] any
other biological fluid.” Under RFRA, the federal government
cannot “substantially burden a person’s exercise of religion,”
42 U.S.C. § 2000bb-1(a), unless the government uses the
“least restrictive means” to further a “compelling governmen-
tal interest,” id. § 2000bb-1(b).

  [2] Defendant may only invoke RFRA if his beliefs are
both “sincerely held” and “rooted in religious belief, not in
‘purely secular’ philosophical concerns.” Callahan v. Woods,
658 F.2d 679, 683 (9th Cir. 1981). To prevail under RFRA,
                  UNITED STATES v. ZIMMERMAN               16477
defendant must first (1) articulate the scope of his beliefs, (2)
show that his beliefs are religious, (3) prove that his beliefs
are sincerely held and (4) establish that the exercise of his sin-
cerely held religious beliefs is substantially burdened. If
defendant successfully demonstrates all this, the government
must then prove that the burden on defendant’s exercise of
religion is nonetheless permissible because (1) it furthers a
compelling governmental interest (2) through the least restric-
tive means.

   [3] Without determining the precise scope of Zimmerman’s
beliefs, the district court held that his beliefs weren’t reli-
gious. The district court noted that Zimmerman was raised
Roman Catholic and explained that it’s not “central to the reli-
gious doctrine of the Roman Catholic faith that one cannot
have blood drawn;” it therefore concluded that Zimmerman’s
beliefs weren’t religious. This was error. Zimmerman doesn’t
have to show that his beliefs are central to a mainstream reli-
gion. RFRA defines “religious exercise” as “any exercise of
religion, whether or not compelled by, or central to, a system
of religious belief.” 42 U.S.C. § 2000cc-5(7)(A) (emphasis
added). Moreover, a belief can be religious even if it’s not
“acceptable, logical, consistent, or comprehensible to others.”
Thomas v. Review Bd. of Ind. Employment Sec. Div., 450 U.S.
707, 714 (1981). Nor is an individual limited to the religious
doctrines of his upbringing; religious beliefs may evolve or
change based upon life experiences or personal revelations.

   [4] Zimmerman professes the belief that he can’t provide a
blood sample because the “human body is a temple,” and
“only God, our Creator, can call for my blood to spill.” He
bases this belief on his Catholic upbringing, his time spent
studying other religions such as Buddhism and a passage from
the Bible. See Genesis 9:6 (“Whosoever sheds the blood of
man, by man shall his blood be shed; for in the image of God
has God made man.”). While this may not be a mainstream
religious belief or common interpretation of the Bible, Zim-
merman’s belief that he can’t give a blood sample is based on
16478             UNITED STATES v. ZIMMERMAN
his connection with God, not purely on secular philosophical
concerns. See Callahan, 658 F.2d at 683. As a result, the dis-
trict court erred in holding that Zimmerman’s refusal to give
a blood sample wasn’t based on a religious belief.

   [5] We remand for the district court to reconsider Zimmer-
man’s RFRA claim. First, the district court must determine
the precise scope of Zimmerman’s beliefs. While Zimmer-
man’s beliefs clearly prohibit blood samples, it’s unclear
whether providing a tissue sample, hair sample or a cheek
swab would also violate his beliefs. Zimmerman’s counsel at
oral argument suggested some of these may not, but Zimmer-
man’s declaration refers to “tissue”—in addition to “body flu-
ids” and “blood”—as “sacred.”

   Second, the district court must consider whether Zimmer-
man’s beliefs are religious. We hold that his belief that he
can’t give a blood sample is religious. However, if Zimmer-
man’s beliefs are broader and would also prevent him from
giving any other sample suitable for DNA analysis, the dis-
trict court will have to determine whether these additional
beliefs are also religiously based.

   Third, the district court will need to determine whether
Zimmerman’s religious beliefs are sincerely held, which is a
question of fact. See United States v. Seeger, 380 U.S. 163,
185 (1965). We have reservations as to whether his beliefs are
sincerely held, and the district court didn’t make any findings
on this issue. The government argues that Zimmerman’s
beliefs aren’t sincere because of his previous drug use and tat-
toos, but it is possible that his beliefs have changed over time.
The district court should hear directly from Zimmerman, as
his credibility and demeanor will bear heavily on whether his
beliefs are sincerely held.

  Fourth, if the district court determines that Zimmerman’s
beliefs are religious and sincere, it must then ask whether his
exercise of religion will be substantially burdened by giving
                  UNITED STATES v. ZIMMERMAN               16479
up a DNA sample. If Zimmerman’s religion prohibits him
from giving blood, extracting DNA through a blood sample
would probably be a substantial burden, as it would “put[ ]
substantial pressure on [him] to modify his behavior and to
violate his beliefs.” Thomas, 450 U.S. at 718. The district
court will also have to apply the substantial burden standard
to any other beliefs Zimmerman may hold. It may well be that
some methods of obtaining a DNA sample intrude less on
Zimmerman’s sincerely held religious beliefs than do others.
If so, the district court must determine which method for
extracting DNA intrudes the least upon Zimmerman’s beliefs.

   If Zimmerman can show that the exercise of his sincerely
held religious beliefs is substantially burdened by all available
means of extracting a DNA sample, the district court must
next ask whether requiring Zimmerman to give up such a
sample is nonetheless permissible as the least restrictive
means of furthering a compelling governmental interest. The
government will have to demonstrate “that the compelling
interest test is satisfied through application of the challenged
law ‘to the person’—the particular claimant whose sincere
exercise of religion is being substantially burdened.” Gon-
zales v. O Centro Espirita Beneficente, 126 S. Ct. 1211, 1220
(2006) (quoting 42 U.S.C. § 2000bb-1(b)). Additionally, the
government will be required to show that it is using the least
restrictive means to obtain Zimmerman’s DNA, consistent
with Zimmerman’s sincerely held religious beliefs. See gener-
ally United States v. Holmes, No. 2:02-CR-0349-DFL, 2007
WL 529830, at *3 (E.D. Cal. Feb. 20, 2007). In the end, how-
ever, the district court may have to determine whether the
least restrictive means of obtaining a DNA sample is justified
in light of the government’s compelling interest, even if it still
violates Zimmerman’s sincerely held religious beliefs. If the
district court determines that the government has satisfied its
heavy burden, it may order extraction of a DNA sample, using
the least restrictive means, even though doing so would vio-
late Zimmerman’s sincerely held religious beliefs.
16480            UNITED STATES v. ZIMMERMAN
   [6] 2. Zimmerman’s Fourth Amendment arguments are
foreclosed by United States v. Kriesel, No. 06-30110, slip op.
at 15299 (9th Cir. Nov. 29, 2007). We previously rejected a
Fourth Amendment challenge to the DNA Analysis Backlog
Elimination Act of 2000 (2000 DNA Act) in United States v.
Kincade, 379 F.3d 813 (9th Cir. 2004) (en banc). Zimmerman
tries to distinguish Kincade because our case deals with the
2004 DNA Act. The 2000 DNA Act was limited to those who
had committed “qualifying federal offenses,” most of which
were violent crimes. Kincade, 379 F.3d at 816-17 n.1 (plural-
ity opinion). The 2004 DNA Act applies to many more
offenders, including some nonviolent offenders. See 42
U.S.C. § 14135a(d)(1). However, Kriesel addressed this pre-
cise argument, slip op. at 15303, and rejected a Fourth
Amendment challenge to the 2004 DNA Act by a criminal
defendant who had not finished serving supervised release, id.
at 15314, 15316-17. Zimmerman has not finished serving
supervised release, so Kriesel requires us to reject his Fourth
Amendment arguments.

   [7] 3. The 2004 DNA Act also doesn’t violate Zimmer-
man’s Fifth Amendment rights. The extraction of DNA
doesn’t implicate the privilege against self-incrimination
because DNA samples are “physical” evidence, not “testimo-
nial” evidence. United States v. Reynard, 473 F.3d 1008,
1021 (9th Cir. 2007) (citing Schmerber v. California, 384
U.S. 757, 765 (1966)). Also, even a compelled blood draw
doesn’t “shock[ ] the conscience,” Rochin v. California, 342
U.S. 165, 172 (1952), so as to violate the Due Process Clause:
“[T]he intrusion occasioned by a blood test is not significant,
since such ‘tests are a commonplace in these days of periodic
physical examinations.’ ” Skinner v. Ry. Labor Executives’
Ass’n, 489 U.S. 602, 625 (1989) (quoting Schmerber, 384
U.S. at 771). Lesser intrusions obviously do not violate due
process.

  [8] 4. Reynard held that Congress didn’t exceed its Com-
merce Clause power in enacting the 2000 DNA Act, 473 F.3d
                 UNITED STATES v. ZIMMERMAN               16481
at 1023-24, and we are bound by Reynard’s reasoning. See
Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en
banc).

                        *      *     *

   The district court erred in holding that Zimmerman’s belief
that he can’t give blood isn’t religious. We therefore remand
for the district court to reconsider Zimmerman’s RFRA claim.
The district court must first determine the scope of Zimmer-
man’s beliefs; then it must ask whether his beliefs are reli-
gious, whether his beliefs are sincerely held and whether the
compelled DNA sample substantially burdens his exercise of
religion. If Zimmerman can show that the exercise of his sin-
cerely held religious beliefs is substantially burdened by any
kind of DNA extraction, the government must establish that
it proposes to use the least restrictive means to further a com-
pelling governmental interest.

  VACATED and REMANDED.
