United States v. John G. Reynard

473 F.3d 1008 UNITED STATES of America, Plaintiff-Appellee, v. John G. REYNARD, Defendant-Appellant. No. 02-50476. United States Court of Appeals, Ninth Circuit. Submission Deferred April 9, 2003. Argued and Submitted December 14, 2004. Submission Vacated and Deferred January 4, 2006. Resubmitted July 12, 2006. Filed January 12, 2007. COPYRIGHT MATERIAL OMITTED Steven F. Hubachek, Federal Defenders of San Diego, Inc., San Diego, CA, attorney for the defendant-appellant. Mark R. Rehe, Assistant United States Attorney, San Diego, CA, attorney for the plaintiff-appellee. Appeal from the United States District Court for the Southern District of California; Irma E. Gonzalez, District Judge, Presiding. D.C. No. CR-98-02402-IEG. Before HARRY PREGERSON, A. WALLACE TASHIMA, and RICHARD R. CLIFTON, Circuit Judges. PREGERSON, J., delivered the opinion of the Court as to Parts I through II(D), in which TASHIMA and CLIFTON, JJ., joined. CLIFTON, J., delivered the opinion of the Court as to Part II(E), in which TASHIMA, J., joined. PREGERSON, J., filed a dissenting opinion as to Part II(E) and dissents from the judgment. 1 PREGERSON, Circuit Judge, with whom TASHIMA and CLIFTON, Circuit Judges,…

delivered the opinion of the Court as to Parts I through 11(D), in which TASHIMA and CLIFTON, JJ., joined. CLIFTON, J., delivered the opinion of the Court as to Part 11(E), in which TASHIMA, J., joined.

PREGERSON, Circuit Judge, with whom TASHIMA and CLIFTON, Circuit Judges, join.

Appellant John G. Reynard seeks review of the district court’s decision to revoke his supervised release. The district court revoked Reynard’s supervised release because he refused to proffer a blood sample, as required by the DNA Analysis Backlog Elimination Act of 2000 (“DNA Act”), Pub.L. No. 106-546, 114 Stat. 2726 (2000), (codified at 42 U.S.C. § 14135a (2000)). Failure to provide a blood sample constituted a violation of the terms of his supervised release. Reynard appeals, contend *1011 ing that the DNA Act (1) violates the Fourth Amendment, (2) is impermissibly retroactive, (3) violates the Ex Post Facto Clause, (4) violates the Commerce Clause, and (5) violates the Fifth Amendment. For the reasons stated below, we affirm the district court’s revocation of Reynard’s supervised release.

I. FACTUAL AND…

dissenting:

I believe that Congress lacked the authority to enact the DNA Act under the Commerce Clause. Accordingly, I must dissent from Part E of the court’s opinion and from the court’s judgment.

Every law enacted by Congress must be based on a power enumerated in the Constitution. See Marburg v. Madison, 1 Crunch 137, 5 U.S. 137 , 2 L.Ed. 60 (1803). The Constitution gives Congress power “[t]o regulate Commerce ... among the several States.” U.S. Const, art. I, § 8. Congress enacted the DNA Act expressly under its commerce power. See H.R.Rep. No. 106-900(1), at 16. The modern interpretation of Congress’s regulatory authority under the Commerce Clause is expansive but not without limits. See United States v. Lopez, 514 U.S. 549, 557 , 115 S.Ct. 1624 , 131 L.Ed.2d 626 (1995). Courts may invalidate a congressional enactment upon a plain showing that Congress has exceeded its constitutional bounds. See id. at 577-78 , 115 S.Ct. 1624 .

As the court’s opinion properly recognizes, the Supreme Court has “identified three general categories of regulation in which Congress is authorized to engage under its commerce power:” (1) “the channels of interstate commerce;” (2) “the…