                                                       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).

                                             -2-
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.

                                     -3-
     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.

                                         -4-
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).

                                     -5-
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).

                                          -6-
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

                                            -7-
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).

                                    -8-
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

                                        -9-
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).

                                     -10-
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).

                                   -11-
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).

                                -12-
APPEAL DISMISSED.




                    -13-
