                          In the
 United States Court of Appeals
              For the Seventh Circuit
                       ____________

No. 03-1759
UNITED STATES OF AMERICA,
                                         Plaintiff-Appellant,
                             v.

MICHAEL HENDERSON,
                                         Defendant-Appellee.

                       ____________
          Appeal from the United States District Court
               for the Eastern District of Wisconsin
        No. 01 CR 197—Rudolph T. Randa, Chief Judge.
                       ____________
    ARGUED DECEMBER 4, 2003—DECIDED JULY 22, 2004
                   ____________



 Before BAUER, EASTERBROOK, and EVANS, Circuit Judges.
  BAUER, Circuit Judge. In 1999, Michael Henderson, then
19 years old, and his co-defendant, stole approximately
$13,000 from Firstar Bank, where he worked. He was
charged in a two-count indictment—the first count charged
him with a violation of 18 U.S.C. §§ 656 and 2, and the
second count he was charged with bank larceny, a violation
of 18 U.S.C. §§ 2113(b) and 2. Henderson pleaded guilty to
the second count of bank larceny and received probation.
One day prior to Henderson’s sentencing hearing, he filed
a motion seeking to enjoin the United States Probation
2                                              No. 03-1759

Office from obtaining a DNA sample as a condition of
probation or supervised release pursuant to the DNA
Analysis Backlog Elimination Act of 2000 (hereinafter the
“DNA Act”). Henderson argued that the collection of his
DNA through a blood draw was an “unreasonable search in
violation of the Fourth Amendment to the United States
Constitution” and in the alternative, the manner of testing
is “unreasonable and unjustifiably intrusive.” In that
motion, Henderson did not challenge the inclusion of bank
larceny under Title 18 U.S.C. § 2113(b), as a qualifying
offense pursuant to Title 42 U.S.C. § 14135(d)(1)(E). At the
time of sentencing, the district court ordered further
briefing of Henderson’s motion regarding the DNA collec-
tion. In his reply brief, Henderson withdrew his agreement
that bank larceny was a qualifying offense under the DNA
Act and the government did not have an opportunity to
address that particular issue. On February 18, 2003, the
district court entered an order finding that bank larceny is
not a qualifying offense under the DNA Act and enjoined
the United States Probation Office from taking Henderson’s
DNA sample. The government now appeals this order. We
reverse the district court’s order.


                        Discussion
  The question is whether bank larceny as set forth in Title
18, United States Code, Section 2113(b) is a qualifying
offense requiring collection of Henderson’s DNA under the
DNA Act. We employ a de novo standard when reviewing
questions of statutory construction and interpretation.
Masters v. Heston Corp., 291 F.3d 985, 989 (7th Cir. 2002).
  In reviewing the district court’s interpretation, we first
look to the actual language of the statute. If we find “the
terms of the statute unambiguous, judicial inquiry is com-
plete.” In re Sinclair, 870 F.2d 1340, 1341 (7th Cir. 1989)
(citing Rubin v. United States, 449 U.S. 424, 430 (1981)).
No. 03-1759                                                  3

  This case involves the interpretation of a few statutes.
The first, the DNA Act requires probation officers to collect
DNA samples from individuals, convicted of certain quali-
fying offenses, who are on probation, parole, or supervised
release. (42 U.S.C. § 14135a, (2000)) Qualifying offenses are
defined in § 14135a(d) as follows:
    (1) The offenses that shall be treated for the purpose of
    this section as qualifying Federal offenses are the
    following offenses under Title 18, United States Code,
    as determined by the Attorney General:
      (A) Murder (as described in section 1111 of such title),
    voluntary manslaughter (as described in section 1112 of
    such title), or other offense relating to homicide (as
    described in chapter 51 of such title, sections 1113,
    1114, 1116, 1118, 1119, 1120, and 1121).
      (B) An offense relating to sexual abuse (as described
    in chapter 109A of such title, sections 2241 through
    2245), to sexual exploitation or other abuse of children
    (as described in chapter 110 of such title), sections 2251
    through 2252, or to transportation for illegal sexual ac-
    tivity (as described in chapter 117 of such title, sections
    2421, 2422, 2423, and 2425).
      (C) An offense relating to peonage and slavery (as
    described in chapter 77 of such title).
      (D) Kidnapping (as defined in section 3559(c)(2)(E) of
    such title).
      (E) An offense involving robbery or burglary (as
    described in chapter 103 of such title, sections 2111
    through 2114, 2116, and 2118 through 2119).
      (F) Any violation of section 1153 involving murder,
    manslaughter, kidnapping, maiming, a felony offense
    relating to sexual abuse (as described in chapter 109A),
    incest, arson, burglary, or robbery.
4                                                No. 03-1759

      (G) Any attempt or conspiracy to commit any of the
    above offenses.
    (2) In addition to the offenses described in paragraph
    (1), the following offenses shall be treated for purposes
    of this section as qualifying Federal offenses, as deter-
    mined by the Attorney General:
      (A) Any offense listed in section 2332(g)(5)(B) of
    Title 18.
      (B) Any crime of violence (as defined in section 16 of
    Title 18).
      (C) Any attempt or conspiracy to commit any of the
    above offenses.
Section 14135a(d)(1)(E), the section applicable to Henderson,
states that qualifying offenses are those offenses involving
robbery or burglary (as described in Chapter 103 of such
title, sections 2111 through 2114 . . . ). 18 U.S.C. § 2113 (a)
and (b) read as follows:
    §2113. Bank robbery and incidental crimes
      (a) Whoever, by force and violence, or by intimidation,
    takes, or attempts to take, from the person or presence
    of another, or obtains or attempts to obtain by extortion
    any property or money or any other thing of value
    belonging to, or in the care, custody, control, manage-
    ment, or possession of, any bank, credit union, or any
    savings and loan association; or
      Whoever enters or attempts to enter any bank, credit
    union, or any savings and loan association, or any build-
    ing , or part thereof, so used, any felony affecting such
    bank, credit union, or such savings and loan association,
    with intent to commit in such bank, credit union, or such
    savings and loan association, or building, or part thereof,
    so used, any felony affecting such bank, credit union, or
    such savings and loan association and in violation of
    any statute of the United States, or any larceny—
No. 03-1759                                                5

      Shall be fined under this title or imprisoned not more
    than twenty years, or both.
      (b) Whoever takes and carries away, with intent to
    steal or purloin, any property or money or any other
    thing of value exceeding $1,000 belonging to, or in the
    care, custody, control, management, or possession of any
    bank, credit union, or such savings and loan associa-
    tion, shall be fined under this title or imprisoned not
    more than twenty years, or both; or
      Whoever takes and carries away, with intent to steal
    or purloin, any property or money or any other thing of
    value not exceeding $1,000 belonging to, or in the care,
    custody, control, management, or possession of any bank,
    credit union, or any savings and loan association, shall
    be fined not more than $1,000 or imprisoned not more
    than one year or both.
  The district court determined that bank larceny was not
a qualifying offense based on a reading of the statutory
language. It reasoned that robbery and burglary are unlike
larceny and therefore the language in § 14135a(d)(1)(E)
which states “An offense involving robbery or burglary . . .”
is limited to an offense with the element of force. (Br. of
Plaintiff-Appellant at App. 4).
  Henderson argues that only robbery and burglary offenses
“as described in chapter 103 of [Title 18], sections 2111
through 2114, 2116, and 2118 through 2119” are qualifying
offenses. According to Henderson, Congress used the lan-
guage “as described in” because chapter 103 includes offenses
other than robbery and burglary. He points to § 2113, itself,
which is entitled “robbery and incidental crimes.”
  On the other hand, the United States argues that Con-
gress used the descriptive title of chapter 103, Robbery and
Burglary, as a global phrase designed to generally cover the
entire chapter, thereby covering a broad range of conduct
under several statutes. The government urges the point
6                                                 No. 03-1759

that under chapter 103, the common thread in the covered
offenses involves the unlawful attempt to obtain property
that belongs to another. Therefore, by the plain terms of the
statute, it is argued that larceny is a qualifying offense.
   After considering both arguments, we have determined
that both readings of Congress’ words are reasonable and
that therefore the language is ambiguous. In our reading,
it is unclear whether Congress intended for bank larceny to
be a qualifying offense for purposes of the DNA Act. In
which case, the interpretation of the Attorney General as
set forth in 28 C.F.R. § 28.2(a) is given deference under
Chevron U.S.A., Inc. v. National Resource Defense Council,
Inc., 467 U.S. 837, 843 (1984).
  In Chevron, the Court held that where Congress has di-
rectly addressed a precise issue, any administrative action
contrary to that intent is not valid. “If the intent of Congress
is clear, that is the end of the matter; for the court, as well
as the agency, must give effect to the unambiguously ex-
pressed intent of Congress.” Chevron, 467 U.S. at 842-43.
   To the extent that the statutory language describing “qua-
lifying Federal offenses” is ambiguous, Chevron mandates
that “a court may not substitute its own construction of a
statutory provision for a reasonable interpretation made by
the administrator of an agency.” Chevron, 467 U.S. at 844.
Rather, in determining whether an agency’s statutory
construction is a permissible one, a reviewing court should
give the agency’s view “controlling weight,” unless the con-
struction is “manifestly contrary to the statute.” Id. at 843-
44.
  In addition, because Congress expressly delegated inter-
pretive authority to the Attorney General, and the Attorney
General’s interpretation has been expressed through the
Administrative Procedure Act rule-making process, the
Attorney General’s construction of the statute is entitled to
No. 03-1759                                                7

substantial deference and must be sustained if reasonable.
Id; see also United States v. Mead Corp., 533 U.S. 218
(2001).
  The Attorney General at 28 C.F.R. § 28.2 states that “any
offense under section . . . 2113 of Title 18” constitutes a
“qualifying offense.” Given that larceny falls under one of
the enumerated code sections, Title 18 U.S.C. § 2113,
Section 28.2 of the regulations does not contradict, but
rather is consistent with, the legislative intent of Congress
in the DNA Act.
  Also, the Attorney General’s construction is reasonable
because it comports with the legislative history. The House
Report explained that the Attorney General was given
authority to elucidate the list of covered offenses because
some of the descriptive language used by Congress to refer
to covered offenses included “terms [that] are not used in
the United States Code to define an offense.” H.R. Rep. No.
900, Pt. I, 106th Cong. 19 (2000).
  The Attorney General’s regulation is not manifestly con-
trary to the statute and deserves controlling weight. There-
fore, we reverse the district court’s order enjoining the
United States Probation Office from collecting Henderson’s
DNA.
                                                 REVERSED.

A true Copy:
      Teste:
                        ________________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit



                   USCA-02-C-0072—7-22-04
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