United States v. David Simpson , 531 F. App'x 402 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-6838
UNITED STATES OF AMERICA,
Petitioner – Appellee,
v.
DAVID ARLON SIMPSON,
Respondent - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (5:09-hc-02075-BR-JG)
Submitted: June 24, 2013 Decided: July 5, 2013
Before KING, AGEE, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Eric J. Brignac, Research and
Writing Specialist, Raleigh, North Carolina, for Appellant.
Thomas G. Walker, United States Attorney, Michael G. James,
Jennifer May-Parker, Assistant United States Attorneys, Raleigh,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
This matter arises under the Adam Walsh Child
Protection and Safety Act, 18 U.S.C.A. §§ 4247-4248 (West 2000 &
Supp. 2011) (the Walsh Act). The Walsh Act “provides that
individuals in the custody of the Bureau of Prisons (BOP) who
are sexually dangerous may be committed civilly after the
expiration of their federal prison sentences.” United States v.
Francis, 686 F.3d 265, 268 (4th Cir. 2012). Here, David A.
Simpson appeals the district court’s order, following a hearing,
committing him to the custody and care of the Attorney General
pursuant to § 4248. We affirm.
I
Simpson first claims that § 4248 violates the Equal
Protection Clause by limiting its application to prisoners and
that the statute also constitutes cruel and unusual criminal
punishment. He acknowledges, however, that our decision in
United States v. Timms, 664 F.3d 436 (4th Cir.), cert. denied,
133 S. Ct. 189 (2012), forecloses this argument. In Timms, we
held that § 4248 did not deprive “Timms and other
similarly-situated individuals in BOP custody of equal
protection of the laws,” id. at 449, and that § 4248 is civil—
not criminal—in nature, id. at 456. We accordingly conclude
that Simpson’s claim lacks merit.
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II
Civil commitment under the Walsh Act is authorized
only if the Government satisfies a three-pronged test. Under
this test, the Government must establish by clear and convincing
evidence that the individual:
(1) previously engaged or attempted to engage in
sexually violent conduct or child molestation (the
prior conduct prong); (2) currently suffers from a
serious mental illness, abnormality, or disorder (the
serious mental illness prong); and (3) as a result of
that mental condition, the individual would have
serious difficulty in refraining from sexually violent
conduct or child molestation if released (the
volitional conduct prong).
United States v. Springer, 715 F.3d 535, 538 (4th Cir. 2013)
(internal quotation marks omitted); see 18 U.S.C.
§ 4247(a)(5)-(6). “If the [G]overnment fails to meet its burden
on any of the three prongs, an individual may not be committed.”
Springer, 715 F.3d at 538.
In this appeal, Simpson challenges only the district
court’s finding that the Government met its burden with respect
to the volitional conduct prong. In particular, Simpson points
to his low scores on static actuarial tests designed to measure
recidivism. In its commitment order, the district court
acknowledged the low scores but gave them less weight than that
afforded both Simpson’s past and recent conduct and the entirety
of expert witness testimony. We review the district court’s
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factual findings for clear error and its legal conclusions de
novo. Springer, 715 F.3d at 545.
With respect to the actuarial tests, we have observed
that such models:
only gauge a risk of recidivism based upon the
statistics of the particular group of sex offenders
selected for comparison. . . . Knowing the recidivism
rate of a particular group does not mean that the
individual under consideration poses the same chance
of recidivism in the same time frame; his risk could
be higher or lower than that of the group based upon
the unique circumstances of his case. . . .
Accordingly, experts using these risk-assessment
models also consider dynamic factors such as the age
of the particular offender, his participation in
treatment, his compliance with such treatment, his
history of reoffending after treatment, and his
commitment to controlling his deviant behavior.
United States v. Wooden, 693 F.3d 440, 448 (4th Cir. 2012)
(internal quotation marks, citations and alterations omitted).
In concluding that the Government had met its burden
with respect to the volitional prong, the district court
credited the opinions of Dr. Demby and Dr. Arnold, who agreed
that despite low actuarial scores, Simpson would have serious
difficulty in refraining from child molestation. Among other
things, Dr. Demby and Dr. Arnold pointed to Simpson’s history of
child molestation dating at least from 1976, his abusing
children while undergoing court-ordered sex offender treatment,
his attitude condoning sexual activity with children, and his
relatively recent conduct reflecting ongoing preoccupation with
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pedophilia. We discern no error in the district court’s finding
that the Government established the volitional prong by clear
and convincing evidence.
III
We accordingly affirm. We dispense with oral argument
because the facts and legal contentions are adequately presented
in the material before the court and argument would not aid the
decisional process.
AFFIRMED
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