United States v. Hardy , 283 F. App'x 84 ( 2008 )

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
6-23-2008
USA v. Hardy
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-1364
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"USA v. Hardy" (2008). 2008 Decisions. Paper 988.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 07-1364
___________
UNITED STATES OF AMERICA
vs.
WILLIE C. HARDY
Appellant.
___________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Criminal No. 06-cr-00308)
District Judge: The Honorable Alan N. Bloch
___________
Submitted Under Third Circuit LAR 34.1(a)
May 23, 2008
BEFORE: SMITH, HARDIMAN, and NYGAARD, Circuit Judges.
(Filed June 23, 2008)
___________
OPINION OF THE COURT
___________
NYGAARD, Circuit Judge.
William Hardy appeals from his sentence, following his guilty plea. Because our
opinion is wholly without precedential value, and because the parties and the District
Court are familiar with its operative facts, we offer only an abbreviated recitation to
explain why we will affirm the judgment of conviction and sentence of the District Court.
Hardy received a subpoena to testify before a grand jury. He failed to appear, and
provided a fictional excuse for his absence. Hardy pleaded guilty to criminal contempt
and making a false statement.
The District Court sentenced him to probation. Hardy was also ordered to
cooperate in the collection of a DNA sample, as directed by the probation officer. Hardy
did not object to these requirements during the sentence hearing. Hardy, however, did
timely file a motion to correct the sentence, in accord with Fed. R. Civ. P. 35(a),
asserting that the court-ordered collection of a DNA sample violates both his Fourth
Amendment rights and the Commerce Clause. Hardy raises the same issues on appeal.
With regard to Hardy’s Fourth Amendment claim, we find that our precedent
controls the claim. United States v. Sczubelek, 402 F.3d 175 (3d Cir. 2005). We have
already found that the DNA Backlog Elimination Act of 2000 (42 U.S.C. §§14135-
14135(e)) does not violate the Fourth Amendment. We have also stated in the past that
there is “no constitutional difference between probation and parole” as it relates to the
Fourth Amendment. United States v. Hill, 967 F.2d 902, 909 (3d Cir. 1992). As a
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probationer, Harvey’s expectation of privacy is reduced below that of an ordinary citizen,
and such rights were not violated by the requirement that he provide a DNA sample.
We find unavailing Hardy’s reference to Samson v. California, 126 S. Ct. 2193 (2006).
Samson does not address the DNA Act, and it does not change the analysis already
detailed by our precedent.
With regard to the Commerce Clause argument, we note that the Supreme Court
has already held that personal information contained in a Department of Motor Vehicles’
record is a “thing” in interstate commerce, and that the Commerce Clause authorizes
Congress to regulate “the sale or release of such information.” Reno v. Condon, 120
S. Ct. 666, 671 (2000) ( quoting Lopez, 115 S. Ct. 1624, 1630 (1995) (emphasis added) .
We agree with the reasoning of the Court of Appeals of the Ninth Circuit that the same
holds true for information obtained in the DNA Act. United States v. Reynard, 473 F.3d
1008, 1023 (9th Cir. 2007). Therefore we conclude that the personal, identifying
information contained in a DNA sample constitutes a “thing” in interstate commerce.
Moreover, as stated by the Court of Appeals for the Tenth Circuit, the DNA Act is
a necessary and proper sanction to a valid criminal law. United States v. Plotts, 347 F.3d
873, 877 (10th Cir. 2003).
For all of these reasons, we will affirm the Judgment of Conviction and Sentence
of the District Court.
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