                               PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 12-2400


UNITED STATES OF AMERICA,

                Petitioner - Appellee,

           v.

BYRON NEIL ANTONE,

                Respondent - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Louise W. Flanagan,
District Judge. (5:07-hc-02042-FL-JG)


Argued:   December 11, 2013                Decided:   February 4, 2014


Before GREGORY, DAVIS, and WYNN, Circuit Judges.


Reversed and remanded with instructions by published opinion.
Judge Davis wrote the opinion, in which Judge Gregory and Judge
Wynn joined.


ARGUED: Eric Joseph Brignac, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Raleigh, North Carolina, for Appellant.        Michael
Bredenberg, FMC BUTNER FEDERAL MEDICAL CENTER, Butner, North
Carolina, for Appellee.   ON BRIEF: Thomas P. McNamara, Federal
Public Defender, G. Alan DuBois, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North
Carolina, for Appellant.      Thomas G. Walker, United States
Attorney, R.A. Renfer, Jr., Joshua B. Royster, Assistant United
States Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh,
North Carolina, for Appellee.
DAVIS, Circuit Judge:

        Respondent-Appellant Byron Neil Antone appeals the district

court’s order of his civil commitment under the Adam Walsh Child

Protection and Safety Act of 2006 (“the Walsh Act”), codified at

18 U.S.C. §§ 4247-48. Four days before he was to be released

from    federal      prison,    an    official       of    the   Federal       Bureau   of

Prisons certified Antone as a sexually dangerous person eligible

for civil commitment. Upon referral of the ensuing proceedings

by the district court, a federal magistrate judge held a three-

day    evidentiary     hearing       and    thereafter       issued   a    report       and

recommendation that Antone should not be found to be a sexually

dangerous person. The district court adopted the majority of the

magistrate judge’s factual and credibility determinations, but

it ultimately found that the Government had satisfied its burden

under    the   Walsh     Act    to    prove      that      Antone   was    a    sexually

dangerous person, and it committed him to civil custody.

       Upon    our    careful    review         of   the    appellate      record,      we

conclude that the district court lacked sufficient evidence to

find that Antone met the standard for civil commitment under the

Walsh Act. Specifically, the Government did not present clear

and    convincing     evidence       that   Antone’s       mental   illnesses      would

cause him to have serious difficulty refraining from sexually

violent conduct. Accordingly, we reverse.



                                            2
                                           I.

                                           A.

     Byron Neil Antone, now forty-one years old, was born in and

raised on the Tohono O’odham Indian Reservation in south central

Arizona. 1 Until age nine or ten, Antone was raised by his mother;

after     that    point,    he   resided       with    his     grandmother     and   his

godmother.

      Antone’s        mother   and     grandmother      were    heavy    drinkers    and

Antone was often neglected and verbally and physically abused as

a child. At seven years old, Antone was on several occasions

sexually abused by his aunt, who was a teenager at the time. By

the time he was fifteen years old, he had had sexual intercourse

with at least two adult women, one of whom was twenty-six.

     Antone had serious behavioral issues as a child, which led

to   school      expulsions      and    stints    in     juvenile       detention.   He

dropped out of high school in ninth grade. He did not maintain

steady     employment          thereafter,       although        he     was    employed

seasonally       as   a   firefighter     with    the    United       States   Forestry

      1
        These facts are a summary of the pertinent factual
findings set forth in the magistrate judge’s memorandum and
recommendation (“M&R”), which was wholly adopted by the district
court. To the extent conflicting inferences might be drawn from
the magistrate judge’s findings, because the Government was the
prevailing party before the district court, we construe the
evidence presented before the magistrate judge in the light most
favorable to, and consistent with, the ultimate determination of
the district court, whose order we review.



                                           3
Service and had attended specialized training classes in that

field.

      In    1991,      when    Antone    was   nineteen    years    old,   he    was

arrested and charged with sexual misconduct with a minor, sexual

abuse,     and   contributing      to    the   delinquency   of    a   minor.    The

arrest related to two sexual acts with a sixteen-year-old who

was Antone’s girlfriend at the time. The first sexual act was

consensual, but the second was forcible rape. Antone pled guilty

to the sexual abuse charge in the Judicial Court of the Tohono

O’odham Nation (“tribal court”) and served about six months in

jail.

      In 1997, tribal authorities charged Antone with threatening

and disorderly conduct. He admitted to rubbing the buttocks of

his cousin, then twenty-one years old, while she was sleeping on

the couch. He was sentenced to 60 days in tribal jail.

      From 1998 to 1999, Antone was charged by tribal authorities

for   several     acts    of    sexual   misconduct,      which    resulted     in   a

consolidated plea agreement and tribal judgment entered on March

16,   1999.      The   consolidated      tribal   judgment    related      to   four

victims and spanned incidents from 1992 through 1997:

        1) Forcible rape of a fourteen or fifteen-year-old in

        1992 or 1993.

        2) Touching of the crotch area of an eleven-year-old in

        1996.

                                           4
     3) Sexual assault of C.R., a woman of unknown age, in

     June 1997. During this incident, Antone tried to force

     C.R. to have sex with him, and when she refused, he threw

     her on the bed, held her hands down, touched her breasts,

     and touched her crotch area. C.R. was able to escape by

     jumping out of her bedroom window.

     4) Forcible rape of R.J., age twenty-five, in November

     1997. During this incident, R.J. awoke   to find Antone on

     top of her. He then forced her to have sex for five to

     fifteen minutes.

Antone pled guilty to charges related to these four incidents in

the consolidated plea agreement. He was sentenced to 3,600 days

in jail by the tribal court.

     Almost all of the incidents described above, and certainly

the June and November 1997 incidents, took place when Antone was

either intoxicated from alcohol and/or high on cocaine. Indeed,

Antone has a serious history of substance abuse. When he was

arrested in February 1998, he was drinking 3 to 5 quarts of beer

a day on average, and up to 11 quarts on some days. He was also

abusing a number of drugs, including marijuana, LSD, and crack

cocaine. As a result, Antone has little to no recollection of

these incidents.

     In November 1999, Antone was sentenced in the United States

District Court for the District of Arizona on a sexual assault

                                5
charge.     The        particular         charge     related       to     Antone’s     assault

against C.R. in June 1997, which was also a subject of his

consolidated tribal judgment. In addition, Antone admitted in

the federal plea agreement to sexual misconduct as to all the

incidents covered in the tribal court convictions.

      According         to    the    testimony        of   Antone’s        attorney    at    the

time, which the magistrate judge fully credited, the federal

criminal        charge       was    actually        initiated       by     Antone     and    his

attorney. “The reason was to enable [Antone] to be transferred

to   federal      custody          and    thereby     have       access    to   sex    offense

treatment at FCI-Butner, which [the attorney] believed would be

designed specifically for Native Americans.” J.A. 845.

      The federal district court in Arizona sentenced Antone to

114 months of incarceration, with credit for time served, and 60

months     of    supervised          release.        The   plea     agreement        reflected

Antone’s request to receive sex offender treatment in federal

custody, and the district court included a recommendation in its

judgment        that     Antone          participate       in     the     residential       drug

treatment and sex offender treatment programs.

                                                B.

      In   accordance          with       the   federal         judgment    and     commitment

order, Antone was incarcerated in the federal Bureau of Prisons

system from November 1999 through February 23, 2007, when the

Government initiated the instant proceeding four days before his

                                                6
expected release. Since then, Antone has resided in FCI-Butner,

a medium security correctional institution in North Carolina,

awaiting his civil commitment hearing and its resolution. As a

result, Antone has been in continuous federal custody for the

past fourteen years, or since he was twenty-seven years old.

        During the entire period of his federal custody, Antone has

not   been     shown     to   have   consumed    alcohol       or   drugs.    Antone’s

prison record contains no sanctions or nonsanctioned incidents

related to alcohol or drugs, and he testified that he has been

sober    for    fourteen      years.    The     Bureau    of     Prisons     regularly

administers Breathalyzer tests on inmates in recognition of the

fact that it is possible to make and obtain contraband alcohol

within the prison. Antone has never tested positive on those

tests.

      Antone     has     attended      Alcoholics      Anonymous      and    Narcotics

Anonymous on his own initiative. He attended meetings during the

first year and a half of his prison term and restarted about a

year before his commitment hearing. He also completed a Drug

Education Program and a non-residential substance abuse program.

      Antone’s     behavioral        problems    while    in     prison     have   been

minimal. He has been sanctioned for four incidents, twice for

fighting       without    serious      injury    and     twice      for   minor    rule




                                           7
violations; the last of these sanctions occurred in 2004. 2 He

obtained     his     GED   in   2001.       In    addition,      he     has       maintained

employment      as    an   orderly      in        his   housing       unit.       His   work

performance therein was characterized as “superior.” J.A. 843.

      Antone regularly seeks out advice and counseling from his

prison’s counselors and treatment specialists. In particular, he

has asked his counselors how to communicate with his son, with

whom he corresponds by mail, and for advice on anger management.

Antone    has   taken      classes     in        art,   beading,      meditation,       and

guitar. He teaches other inmates how to play the guitar.

      As for sexual conduct, Antone’s record indicates that he

has   “not   engaged       in   sexual       misconduct        during       his    extended

incarceration.”        J.A.     882.    At       the    time   of     the     evidentiary

hearing, however, he had not attended sex offender therapy or

treatment. Antone and his former attorney testified that he had

made several requests for treatment at the early side of his

incarceration period, but it was apparently not then available

to him because “his release date was so far in the future.” 3 J.A.


      2
       The Bureau of Prisons records also refer to three events
that did not result in disciplinary sanction. They primarily
stem from the attempted delivery of the magazine Maxim to
Antone, and the presence in Antone’s cell of a number of
pictures, cut out from magazines, of scantily-clad adult women.
      3
       When asked to explain why he had not completed a sex
offender    treatment  program   at   any   point  during   his
incarceration, Antone responded, “I don’t know why. Some places
(Continued)
                                             8
830.   When   it    became    available      in   September    2008,    after   the

Government     filed    its     § 4248(a)         petition,    Antone    did    not

participate in the treatment. He indicated that he did not do so

because he knew that statements made during treatment “could be

used against him” in the commitment proceeding. Id.

                                        C.

       On February 23, 2007, four days before Antone’s expected

release date, the Government filed a certification, pursuant to

18 U.S.C. § 4248(a), of Antone as a sexually dangerous person.

The case was originally stayed pending an appeal relating to the

constitutionality of § 4248, see United States v. Comstock, 551

F.3d   274,   276   (4th     Cir.   2009)    (holding   that    Congress   lacked

authority to implement § 4248), rev’d and remanded, 560 U.S.

126, 130 (2010) (reversing on issue of Congressional authority

but remanding for due process consideration); 627 F.3d 513, 515

(4th Cir. 2010) (subsequently holding that § 4248 satisfies due

process clause), cert. denied, 131 S. Ct. 3026 (2011). In June

2010, Antone filed a motion for a hearing on the merits of the

certification, and the district court referred the matter to a




I went didn’t have the program. . . . I was talking with some
other brothers who are here and they said they were told they
didn’t qualify.” J.A. 1238.



                                        9
magistrate            judge    for    an     evidentiary      hearing        and    report   and

recommendation.

       The magistrate judge held an evidentiary hearing over the

course of three days in October 2011. As will be described in

further detail infra, the Government presented the testimony of

Antone, as well as two expert witnesses; Antone presented the

testimony of a specialist and a counselor at the correctional

facility at which he resided, a United States Probation Officer

from    Arizona,          and    an     expert      witness.      The    magistrate       judge

admitted the testimony of all three proffered expert witnesses.

       On April 30, 2012, the magistrate judge issued his M&R, in

which       he    recommended         that     Antone       not   be    found       a   sexually

dangerous person. The Government thereafter filed a series of

objections to the M&R, to which Antone responded. The Government

also    submitted             several       additional       notices         of    supplemental

authority, including Ninth Circuit case law on the tolling of

supervised release during the pendency of a civil commitment

proceeding.

       On September 20, 2012, the district court issued its order

and judgment on the instant certification. Although it accepted

all    of    the       magistrate       judge’s         credibility     determinations       and

findings         of    historical          fact,   it     rejected     the    M&R’s     ultimate

recommendation of a finding of not sexually dangerous. It found

that    the      combination          of    Antone’s       serious     mental      illnesses   —

                                                   10
namely      antisocial           personality          disorder         and        polysubstance

dependence     –     would       cause    him    to    have      serious      difficulty       in

refraining         from    sexually       violent          conduct      if     released.       It

therefore committed Antone to the custody of the United States

Attorney General as a sexually dangerous person. The instant

appeal followed.

                                               II.

                                                A.

     The Government seeks the commitment of Antone pursuant to

18 U.S.C. § 4248, which was enacted as part of the Adam Walsh

Child    Safety      and    Protection         Act    of    2006.      Under       § 4248,    the

Government may seek the civil commitment of certain individuals

in   the    custody        of    the     Federal      Bureau      of       Prisons      who   are

determined     to     be        “sexually      dangerous         person[s].”         18    U.S.C.

§ 4248(d). The commitment process is initiated when the Attorney

General or his designee files a certification attesting that an

individual is sexually dangerous as defined by the Walsh Act,

after      which    the     respondent          is    entitled        to     an    evidentiary

hearing. “If, after the hearing, the court finds by clear and

convincing     evidence          that    the    person      is    a    sexually         dangerous

person, the court shall commit the person to the custody of the

Attorney General.” Id.

     To      demonstrate          that    an     individual           should       be     civilly

committed under § 4248, the Government must prove, by clear and

                                                11
convincing evidence, that each one of the following criteria has

been satisfied: (1) the individual has previously “engaged or

attempted     to   engage           in   sexually     violent      conduct    or    child

molestation”       (the        “prior       conduct”        element),        18     U.S.C.

§ 4247(a)(5);      (2)        the    individual      currently      “suffers       from    a

serious mental illness, abnormality, or disorder” (the “serious

illness” element), id. § 4247(a)(6); and (3) as a result of such

a condition, the individual “would have serious difficulty in

refraining from sexually violent conduct or child molestation if

released” (the “serious difficulty” or “volitional impairment”

element), id. See also Comstock, 560 U.S. at 130; United States

v.   Springer,     715    F.3d       535,   538     (4th   Cir.    2013).    Antone       has

conceded that the Government has met its burden with regard to

the prior conduct element as well as the finding of a serious

mental   illness.        He     disputes,     however,       the    district       court’s

conclusion    as   to     the       third   element,       that   the   Government        has

demonstrated a sufficient likelihood that Antone will re-offend.

      We review the district court’s factual findings for clear

error and its legal conclusions de novo. United States v. Hall,

664 F.3d 456, 462 (4th Cir. 2012). For the reasons we explain

within, although the district court’s ultimate mixed finding on

volitional impairment is not infected with “clear error” in the

traditional      sense        of    that    term,    it     nonetheless      constitutes

reversible error because it is against “the clear weight of the

                                             12
evidence considered as a whole.” United States v. Wooden, 693

F.3d    440,    451       (4th    Cir.    2012).        Put    somewhat       differently,         we

conclude       as    a     matter    of     law    that       the    Government         failed      to

establish by clear and convincing evidence that Antone would, as

a   result     of        his   serious      illness       or    condition,         have       serious

difficulty          in    refraining        from        sexually      violent       conduct         if

released.

                                                  B.

       The standard set forth for civil commitment under § 4248 is

clear    and    convincing          evidence.          This    so-called       “intermediate”

standard       is    mandated       not    only    by     the       plain    language         of   the

statute, 18 U.S.C. § 4248(d), but by constitutional due process

constraints, as well. See Addington v. Texas, 441 U.S. 418, 427

(1979)     (observing            that     the     clear        and    convincing          evidence

standard       is    required       in    civil        commitment      proceedings            because

“[t]he     individual’s             interest       in     the        outcome       of     a    civil

commitment proceeding is of such [great] weight and gravity”).

       When applying the clear and convincing standard, the court

must    identify          credible       supporting       evidence          that   renders         its

factual determination “highly probable.” Direx Israel, Ltd. v.

Breakthrough Med. Corp., 952 F.2d 802, 810 n.7 (4th Cir. 1992).

The    court    must       then     weigh    the       evidence       and    ask    whether        the

totality of the record “produces in the mind of the trier of

fact a firm belief or conviction, without hesitancy, as to the

                                                  13
truth of the allegations sought to be established[.]” United

States v. Heyer, --- F.3d ---, ---, No. 12–7472, 2014 WL 185584,

at     *6    (4th     Cir.        Jan.     17,      2014)     (quoting       Jimenez        v.

DaimlerChrysler         Corp.,      269     F.3d    439,    450    (4th     Cir.    2001));

Springer, 715 F.3d at 538.

       In applying the first two commitment criteria under the

Walsh       Act,    the     question        is      whether    the     Government          has

established         with     clear       and     convincing       evidence     that        the

respondent acted or acts in a certain manner. The third element,

however, is more complicated, in that it requires the court to

issue a predictive judgment: has the Government met its burden

by     presenting     clear        and     convincing       evidence      that,     in    the

uncertain future, the respondent will have “serious difficulty

in     refraining          from     sexually        violent       conduct      or        child

molestation”? 18 U.S.C. § 4247(a)(6).

       We are mindful that the Supreme Court has explained that

such    an    inquiry      “will     not    be   demonstrable        with   mathematical

precision.” Kansas v. Crane, 534 U.S. 407, 413 (2002). Instead,

in order to find that the third criterion is satisfied, the

court must look for

     proof of serious difficulty in controlling behavior. And
     this, when viewed in light of such features of the case as
     the nature of the psychiatric diagnosis, and the severity
     of the mental abnormality itself, must be sufficient to
     distinguish the dangerous sexual offender whose serious
     mental illness, abnormality, or disorder subjects him to


                                               14
  civil commitment from the dangerous but typical recidivist
  convicted in an ordinary criminal case.

Id. In other words, the Government must demonstrate that the

serious      illness,      as        it    has    manifested       in     the     particular

respondent,        has    so    significantly           diminished        his     volitional

capacity     such    that       he    is    distinguishable         from    the     ordinary

“dangerous but typical recidivist.” Id.; see also Wooden, 693

F.3d at 460 (framing the third criterion as “the extent to which

the inmate is controlled by the illness”).

       We    now    assess      the        instant    record       with    this     exacting

standard in mind. As to the third criterion, we find that the

aggregate     of    historical,            direct,    and    circumstantial        evidence

contained therein may be best described (as the magistrate judge

seemed to regard it) as in equipose, or, at most, as rising to a

level   of    preponderance           in    favor     of    commitment.      But     this   is

simply not enough to satisfy the statutory burden of clear and

convincing     evidence.         See       Medtronic,       Inc.   v.     Mirowski    Family

Ventures, LLC, 571 U.S. ---, ---, No. 12-1128, 2014 WL 223040,

at *6 (2014) (“[T]he burden of proof . . . [is] part of the very

substance of [the plaintiff’s] claim and cannot be considered a

mere    incident     of    a    form       of    procedure.”)      (quoting       Garret    v.

Moore-McCormack Co., 317 U.S. 239, 249 (1942)). We thus have no

hesitation in finding a fatal evidentiary insufficiency in the

Government’s presentation.


                                                 15
                                             C.

     The majority of the evidentiary record consists of reports

and testimony presented at the three-day hearing in front of the

magistrate     judge.     At    the    hearing,           the    Government         presented

testimony    from   Antone      himself,          and     expert      witnesses       Dr.    Amy

Phenix,     Ph.D.   and    Manuel       E.    Gutierrez,             Psy.D.    Antone       then

presented     the     testimony        of         Clement       Gallop,        a    treatment

specialist    in    the    commitment         and       treatment       program       at    FCI-

Butner; Andre Taylor, a counselor at FCI-Butner; Anne Schauder,

a United States Probation Officer from Arizona; and an expert

witness,     licensed      psychologist             Roy     G.       Daum,     Psy.D.        The

magistrate judge found all of the witnesses credible, with a

single exception related to Antone’s account of certain past

crimes.

      Because   the      sole    issue       on    appeal       is    whether       there    was

sufficient evidence of Antone’s future volitional impairment, we

summarize the evidence only as it pertains to that issue.

                                             1.

      The    Government        first     called         respondent       Antone.        Antone

testified    that   he    was    unable       to    recall       the    majority       of    his

sexual assaults because he was either drunk or high at the time

of   the    incidents.     He    then        testified          about    his       upbringing,

substance abuse, and progress while in prison. He stated that he

would always be an alcoholic and there would always be a risk

                                             16
that he would drink again, but that he knew to stay away from

high risk places and people. He also stated that while in prison

he had learned how to talk to others about his problems and to

“release [his] feelings in a positive way.” J.A. 221.

     Subsequently, Antone presented the lay testimony of Clement

Gallop    and   Andre    Taylor.    Gallop       is    employed     as    a    treatment

specialist in the commitment and treatment program at FCI-Butner

and Taylor is a counselor at FCI-Butner. Gallop testified that

he is approached by Antone on a weekly basis, and that they have

discussed issues related to Antone’s son and anger management in

general. Taylor testified that Antone has never tested positive

or been observed to have imbibed alcohol or used drugs, even

though such substances are available in prison and Taylor had

disciplined others for alcohol-related issues. Both Gallop and

Taylor    had     positive   impressions         of    their      interactions        with

Antone.

     Antone also presented the testimony of Allan Duprey and

Anne Schauder. Duprey, who was Antone’s attorney on the federal

criminal    charges,     testified        that    the       federal      charges      were

initiated at his urging so that Antone could have access to sex

offense    treatment    designed     specifically           for   Native      Americans.

Duprey     also     testified      that     he        had    inquired         about    the

availability      of   sex   offender     treatment,        but    was   told    by    the

Bureau of Prisons that Antone would not receive treatment until

                                          17
the last five years of his ten-year sentence. Schauder is a

United States Probation Officer in the District of Arizona. She

explained the support and supervision that her district provides

to sex offenders, including the utilization of halfway houses,

sex offender treatment, and polygraph tests. 4

                                      2.

      The Government also presented the testimony of two expert

witnesses, Dr. Amy Phenix and Dr. Manuel Gutierrez, who were

admitted as experts in the field of forensic psychology without

objection. Both Government experts testified that Antone met the

criteria for civil commitment as a sexually dangerous person.

Their conclusions were based on their review of Antone’s written

records. Dr. Gutierrez was unable to conduct an interview of

Antone, and the portion of Dr. Phenix’s report that related to

an   interview   she   conducted     with   Antone   was   excluded   by    the

magistrate   judge     and   the   Government   does   not   challenge     that

order.


      4
       Schauder also testified that on November 3, 2011, the
federal district court in Arizona had added an additional
condition that Antone reside in a halfway house for up to 365
days after release from custody. Antone consented to this
additional condition and executed a written waiver. Antone has,
of course, not yet been before any district court (in Arizona or
in another district should his supervision be transferred) for a
final determination as to the terms of his supervised release,
in light of the fact that he remains in federal custody in North
Carolina subject to the instant § 4248 proceeding.



                                      18
       Dr. Phenix diagnosed Antone with paraphilia not otherwise

specified, nonconsent (“paraphilia NOS, nonconsent”); 5 alcohol

dependence; 6 and antisocial personality disorder (“APD”); 7 and

she testified that as a result, he would have serious difficulty

refraining from sexually violent conduct. She opined that the

primary       cause    of   Antone’s    volitional       impairment       was     his

paraphilia      NOS,    nonconsent,    mental      illness.   Dr.    Phenix      found

that Antone’s paraphilia NOS, nonconsent, caused him to deviate

from       ordinary    sexual   impulses     and    behaviors,      and   then    his

alcohol       dependence    would   serve     as    a   disinhibitor      and     his

antisocial personality disorder would reinforce his paraphilic

impulses. When specifically questioned by the court, Dr. Phenix

added that, even if the paraphilia diagnosis was disregarded,



       5
        Paraphilia is defined as “recurrent, intense sexually
arousing fantasies, urges and behaviors” involving, in the
context of the “nonconsent” specifier, sexual arousal “by the
nonconsenting aspect of nonconsensual sexual encounters.” J.A.
848-49.
       6
       Alcohol/substance dependence is defined as a “maladaptive
pattern of substance use, leading to clinically significant
impairment or distress[.]” J.A. 849. There is no dispute that
Antone suffers from substance dependence.
       7
       Antisocial personality disorder is defined as “an enduring
pattern of inner experience and behavior that deviates markedly
from the expectations of the individual’s culture, is pervasive
and inflexible, has an onset in adolescence or early adulthood,
is stable over time, and leads to distress or impairment.” J.A.
851. At the appellate level, Antone does not challenge the
diagnosis of antisocial personality disorder.



                                        19
she would still “believe that [Antone] will go on to commit

criminal sexual behavior.” J.A. 420.

       Dr. Phenix’s conclusion on the volitional impairment prong

was based on (1) the pattern and duration of Antone’s offending;

(2) his commission of additional offenses after his 1991 sexual

abuse conviction; (3) an actuarial assessment of risk based on

static risk factors; (4) the presence of dynamic risk factors;

and 5) the absence of protective factors. Dr. Phenix explained

at the hearing that her first methodology was to “look at the

pattern      and   duration       of   his   offending    to    see   how   well   his

behavioral controls were when he was in the community.” J.A.

331.       She   focused    on    certain     undisputed       historical   factors,

emphasizing        the     repeated    nature     and    aggression    of     Antone’s

assaults and that he continued to commit assaults even after his

first arrest in 1991. 8

       Dr. Phenix viewed Antone’s behavior while incarcerated only

as a secondary consideration. When questioned on why she relied

almost       exclusively     on    pre-incarceration       conduct,     Dr.    Phenix

responded that “I think the best measure of his volition is


       8
        With respect to her actuarial analysis, Dr. Phenix
utilized several predictive models, in which she inputted a
number of “static,” mostly historical facts, including the
number of prior sex offenses; whether the offender was single at
the time of offending; and whether any victims were related to
the offender.



                                             20
prior to being in a prison where you have such strict structure

and rules for your behavior[.]” J.A. 332.

     The    magistrate    judge    also       heard    similar   testimony   from

Government     witness    Dr.    Gutierrez.      Dr.    Gutierrez’s     diagnoses

matched    those   of    Dr.    Phenix    -    paraphilia    NOS,      nonconsent;

polysubstance      (including     alcohol)      dependence;      and    antisocial

personality disorder – and also included an additional diagnosis

of paraphilia NOS, hebephilia. He concluded that a combination

of all of the above-listed illnesses, or alternatively a sole

diagnosis of APD, would “cumulative[ly]” cause Antone to have

serious    difficulty    refraining      from    sexually     violent    conduct.

J.A. 457-58.

     Antone subsequently presented the testimony of his expert

witness, Dr. Roy Daum, who was admitted as an expert in the

field of forensic psychology over the Government’s objection.

After conducting a forensic evaluation of Antone in February

2011, Dr. Daum diagnosed Antone with polysubstance dependence;

frotteurism; and borderline personality disorder. 9 He agreed with


     9
       Notably, Dr. Daum did not diagnose Antone with any form of
paraphilia NOS, be it nonconsent (when an individual is aroused
by nonconsent) or hebephilia (when an individual is aroused by
pubescent individuals). He explained that after interviewing
Antone for five hours, he had not seen any evidence or admission
by Antone — for example, an interest in deviant sexual fantasies
or a physical arousal to certain images — that would suggest
that Antone was aroused by forced sex. Dr. Daum also referred to
a psychophysiological evaluation taken in 1999 in anticipation
(Continued)
                                         21
the Government’s experts that Antone met the first and second

criteria    of    § 4248     confinement.        He   disagreed,     however,      that

Antone had demonstrated that he would have serious difficulty

refraining from sexually violent conduct if released.

      Dr. Daum reasoned that Antone’s offense conduct had not

been rooted in sexual deviance, but rather stemmed from a lack

of   interpersonal       skills    and    a     serious    substance      abuse.   Dr.

Daum’s conclusion considered as a central part of his analysis

certain         “dynamic”      factors          observed         during     Antone’s

incarceration, including the absence of evidence of any use of

drugs or alcohol or any engagement in antisocial activities; the

absence    of    records    showing      that   Antone     had   a   general   sexual

preoccupation;       Antone’s       positive          management     records;       and

evidence    of     his     completion     of     several    self-help      programs,

learning    of    vocational      skills,       and   seeking     counseling    while

incarcerated. Of the difference between his opinion and that of

Dr. Phenix and Dr. Gutierrez, he remarked the following:



of Antone’s federal sentencing. Although the report did not make
a formal diagnosis, it observed that “[i]t is possible that
[Antone’s] sexually aggressive and sexually deviant behavior
patterns   are  the   result  of  emotional   and  psychological
disturbance, rather than persistent deviant sexual arousal or
attraction[.]” J.A. 829.

       As will be discussed infra, both the magistrate judge and
the district court adopted Dr. Daum’s conclusion that Antone did
not suffer from any form of paraphilia.



                                          22
  I believe there are many factors that you look at as far as
  a civil commitment is concerned. Certainly you have heard
  the last two days of a lot of discussion about actuarials.
  One of the things that is really missing is the dynamic
  factors of how that person is now [as compared to his
  former] acts. Static, meaning it’s all said and done and
  it’s easy to score, . . . but the dynamic factors allow for
  the growth of a person to change or it allows for the
  person not to change.

J.A. 642. Finally, Dr. Daum opined that outpatient treatment of

Antone during supervised release could adequately address his

sex offense and substance abuse problems.

                                        D.

       On   April     30,    2012,     the        magistrate    judge   issued    a

comprehensive M&R recommending that the district court reject

the Government’s certification of Antone as a sexually dangerous

person. The magistrate judge concluded that the Government had

met its burden with regard to the first element, in that Antone

had    previously      engaged    in     sexually       violent     conduct.     The

magistrate judge also accepted the Government’s contention that

Antone suffered from certain serious mental illnesses within the

scope of § 4247(a)(6). Specifically, the magistrate judge found

evidence of polysubstance dependence, but it rejected the rest

of the Government experts’ diagnoses, most notably paraphilia

NOS,   nonconsent     and    antisocial      personality       disorder.   It   also

rejected    Dr.     Daum’s   diagnoses       of    frotteurism    and   borderline

personality disorder.



                                        23
      The       magistrate    judge   ultimately    concluded,   however,    that

the       Government    had     not   presented     sufficient    evidence     to

demonstrate that Antone’s polysubstance dependence would result

in    a     serious    difficulty      refraining    from   sexually    violent

conduct. The magistrate judge emphasized that the Government’s

position on volitional impairment was “based on [a theory of]

multiple diagnoses,” but it had decided that the Government had

not       met    its   burden    on    any    of    those   diagnoses    except

polysubstance dependence. As a result, the magistrate judge was

not persuaded by the Government’s presentation as to Antone’s

volitional impairment. It cited, for example, to Dr. Gutierrez’s

understanding that “just a substance diagnosis alone could not

essentially stand by itself for civil commitment.” J.A. 881.

      The magistrate judge afforded near determinative weight to

Antone’s conduct “over the last 13 or so years,” during his time

in federal prison. It noted that Antone had not been shown to

have consumed alcohol or drugs or to have engaged in sexual

misconduct during his extended incarceration. It also pointed to

his attendance in Alcoholics Anonymous and his eagerness to seek

out counseling for anger management.

      The magistrate judge recognized that Antone’s achievements

while incarcerated came about in a controlled environment where

access to his vices was limited. Nevertheless, its review of the

evidence – including the testimony of Dr. Daum, who had stressed

                                         24
the utility of dynamic factors in Antone’s case - led it to

conclude that over the past thirteen years, Antone “has achieved

a   level   of    sexual      self-regulation”       and    “a    measure     of   self-

control” that significantly undercut the Government’s position

that he would have serious difficulty refraining if released.

J.A. 882. It observed that certain evidence relied upon by the

Government’s expert witnesses, such as the nature, pattern, and

duration of offense conduct, “is not as reliable an indicator of

his behavior if released . . . because of, among other reasons,

the    extended         intervening       period     in    which      there    was    no

manifestation of such conduct.” J.A. 884-85.

       The magistrate judge also considered as “significant[]” the

fact   that      Antone     would    be   subject    to    “an    extended     term   of

supervised release.” J.A. 883. It noted that he would spend his

first year of supervised release in a halfway house and that

throughout       his    term,   he   would   be     subject      to   supervision     and

participation          in   substance     abuse    and    sex    offender     treatment

programs, periodic drug tests, and prohibitions against contact

with children.

       In light of the “paucity” of evidence that Antone would

have serious difficulty refraining from sexually violent conduct

if released, the magistrate judge concluded that the Government

had failed to meet its burden of establishing, by clear and



                                            25
convincing evidence, that Antone was a sexually dangerous person

under § 4248. J.A. 886.

                                            E.

       On September 24, 2012, the district court issued an order

rejecting      the   magistrate      judge’s       ultimate       recommendation            and

civilly committing Antone. It accepted the M&R’s findings of

historical      fact    and    witness      credibility,        and       noted      that    it

reviewed de novo those aspects of the M&R that were objected to

by the parties.

       In applying the three-prong test, the district court first

accepted the magistrate judge’s conclusion that the Government

had    established      that    Antone      had    engaged      in    sexually       violent

conduct. It      also    agreed      with    the    majority         of   the    magistrate

judge’s recommendations as to the diagnoses of Antone’s mental

illnesses.      Notably,       the    district       court      found       that      Antone

suffered     from    polysubstance       dependence         and      that    he      did    not

suffer from paraphilia NOS, nonconsent. In disagreement with the

magistrate judge, however, the district court found sufficient

evidence of a diagnosis of antisocial personality disorder and

held    that    these     two     diagnoses,        as     manifested           in   Antone,

qualified as serious mental illnesses.

       The   district     court      then    found       that   the       Government        had

satisfied the volitional impairment requirement of § 4248. In



                                            26
doing so, its primary focus appeared to be Antone’s admitted

alcoholism. It stated:

  Respondent admits that he is and will always be an
  alcoholic. To his credit, respondent has participated in
  substance abuse treatment and evidently has refrained from
  using alcohol and drugs while incarcerated. . . .
  [However,] the risk that respondent will relapse into
  abusing alcohol and other substances would be much higher
  in the community.

J.A. 1115-16. It continued, “[t]he court is convinced that if

respondent uses alcohol he will have serious difficulty stopping

himself   from   sexually     attacking   persons    he   finds   desirable,

despite their nonconsent.” J.A. 1116.

      The district court looked to the combination of Antone’s

substance dependence and APD diagnoses to predict that his past

history of sexual attacks would continue once released. “This

volitional impairment has resulted in a consistent pattern of

numerous violent sexual attacks in the past, and the court finds

that the impairment will persist if respondent is released.” Id.

The   court   also   relied    on   Dr.   Phenix’s   testimony    that   her

conclusion on the volitional impairment prong would not change

without the paraphilia NOS, nonconsent diagnosis.

      Finally, the court expressed concern that it would not be

able to require Antone to undergo sex offender treatment. All

parties – including Dr. Daum as well as Antone himself – agreed

that Antone would benefit from sex offender treatment. According

to the district court, however, under a recent Ninth Circuit

                                     27
case,   United   States      v.    Turner,    a   § 4248    detainee’s        term   of

supervised release is not tolled while he remains in custody

awaiting a commitment hearing. 689 F.3d 1117, 1121 (9th Cir.

2012). Assuming Antone’s period of supervised release actually

had begun when he was due to be released from the Bureau of

Prisons, supervision would have ended on February 27, 2012, but

he was still civilly committed at that point. The district court

thus predicted that without a tolling mechanism, Antone would

not be subject to any term of supervised release under Ninth

Circuit law. It also rejected as “irrelevant” the testimony of

the probation officer from Arizona based on similar reasoning.

     Accordingly,      the    district       court   rejected     the    magistrate

judge’s    ultimate     recommendation,           instead    finding      that       the

Government had established that Antone was a sexually dangerous

person within the meaning of 18 U.S.C. § 4247(a)(5) and (6).

                                         F.

     Because     Antone      has   not   disputed     the    first      and    second

elements   of    the   Government’s      § 4248      certification,       the     sole

issue on appeal is whether the district court erred in finding

that he will have serious difficulty refraining from sexually

violent conduct if released. We hold that it did.

     Under   the   clear      error   standard,      we    may   not    reverse      the

district court’s holding even if we are “convinced that had we

been sitting as the trier of fact, we would have weighed the

                                         28
evidence         differently.”        Springer,        715    F.3d    at    545    (internal

citations           omitted).         Yet    “while          clear-error         review      is

deferential,         it   is    not    toothless.”       Wooden,      693    F.3d     at    451

(internal         citations      omitted).        A    reversal      is    warranted,       for

example, if the district court failed to “properly tak[e] into

account substantial evidence to the contrary” or its “factual

findings are against the clear weight of the evidence considered

as a whole.” Id. at 462. We may then reverse if, upon reviewing

the district court’s ultimate mixed findings, we are “left with

the    definite       and      firm    conviction       that     a   mistake       has     been

committed.” Id. at 451.

       That is precisely what is at stake here: our review of the

lower       court    opinion     leads      us    to   conclude      that    the    district

court’s          inadequate      consideration           of     certain          “substantial

evidence” – namely Antone’s behavior in the past fourteen years

or    so     –    constitutes         reversible       error.     And      our    subsequent

analysis of the evidentiary record leaves us with a definite and

firm conviction that Antone’s commitment should be reversed.

       That Antone has “responded very well” to incarceration is

not in dispute. J.A. 333. Antone has not tested positive for any

substances while in prison, and he testified that he has been

sober during his extended incarceration. Antone’s conduct as it

relates to sexual deviance is equally commendable. Not only has

he    not    engaged      in   any     actual     sexual      misconduct     or     hostility

                                                 29
toward women, but, just as importantly, his record is devoid of

any    indication   that    he   has   even    desired      to   manifest    such

misconduct.

       Instead, Antone has presented significant testimony to the

contrary. Two employees from the correctional facility testified

on    Antone’s   behalf,   and   the   magistrate        judge   found   credible

their assurances that their interactions with Antone have been

consistently     positive    and   that       he   has     demonstrated     self-

awareness and control on a regular basis. He has for the most

part avoided conflicts with superiors or fellow inmates. Antone

has completed his GED, as well as other professional programs,

and he readily seeks out the prison’s mental health resources.

He has expressed remorse for his past acts.

       Yet the district court’s discussion of Antone’s behavior

while incarcerated is negligible at best. It failed to discuss

the opinions of Gallop or Taylor, the only witnesses who have

had consistent contact with Antone since his incarceration. It

considered the testimony of Antone only to the extent that he

admitted that he will always be an alcoholic. 10 And it failed to

       10
       To the contrary, we note that Antone’s admission that he
will always struggle with alcohol is a crucial and necessary
step in his path toward recovery from substance abuse. See The
Twelve    Steps   of    Alcoholics   Anonymous,   available   at
http://www.aa.org/en_pdfs/smf-121_en.pdf (stating that the first
step in addressing addiction is accepting that a problem exists)
(last visited January 31, 2014).


                                       30
mention the nearly ten-year period in which Antone has had zero

disciplinary infractions and the nearly fifteen-year period in

which Antone has had no sex-related incidents.

       In    fact,   in   the     “serious     difficulty”     section    of    its

opinion, the district court’s analysis of Antone’s conduct while

incarcerated is limited to a single sentence acknowledging his

“evident[]” abstinence from alcohol. 11 Relying again on Antone’s

past history of “numerous violent sexual attacks,” it concluded

that his volitional impairment would persist if released.

       Since upholding the constitutionality of the Walsh Act in

2010, we have disposed of more than a handful of § 4248 appeals

involving     the    volitional    impairment      prong,    but   none   of   them

involved      a   respondent      who    had   demonstrated        such   positive

behavior during the extended period of his incarceration. In

each    of   those    cases,    the     district    court    referred     to   some

negative aspect of the respondent’s recent (that is, during-


       11
            That portion of the district court opinion reads, in
total,

  Respondent admits that he is and always will be an
  alcoholic. To his credit, respondent has participated in
  substance abuse treatment and evidently has refrained from
  using alcohol and drugs while incarcerated. Although
  alcohol and drugs are certainly present where respondent is
  housed, they are contraband, and their availability is
  considerably limited compared to the access respondent
  would have to such substances if he were to be released.

J.A. 1115 (emphasis added).



                                         31
incarceration        or    post-release)         behavior.      In   United       States    v.

Bolander, 722 F.3d 199, 204 (4th Cir. 2013), for example, we

affirmed the commitment of a respondent who stole pornographic

materials      from        the     treatment       lab     while     incarcerated          and

collected      child        pornography          while    on     supervised         release.

Likewise,     in     United       States   v.     Wooden,      693   F.3d    at    445,    the

respondent had written a letter to one of his previous victims,

and    we   concluded        that    he    had    serious      volitional         impairment

issues. See also United States v. Heyer, --- F.3d at ---, 2014

WL 185584, at *2-3, 9 (noting respondent’s admission of “ongoing

sexual       interest        in      children,”          including      showing         child

pornography to a teenage boy while on probation).

       Even those cases in which the respondent was ultimately

found not to qualify for commitment nevertheless involved some

evidence of negative behavior during incarceration. In United

States v. Hall, 664 F.3d at 464, the district court considered

the    respondent’s        ongoing     interest      in     collecting       pictures      and

drawings of children and adolescents while in custody and his

report      that    he     often    masturbated      to     memories        of    his   child

victims, but it ultimately concluded that due to his abstention

from     hands-on         offenses    during       his     twenty-eight           months   of

release, he was not sexually dangerous under § 4248; we affirmed

the judgment. See also United States v. Francis, 686 F.3d 265,

271    (4th        Cir.     2012)     (considering          respondent’s           perceived

                                             32
hostility    toward   women    and   his   noncompliance    with   supervised

release,     but   affirming     denial      of    government’s    commitment

petition).

     Here, Antone’s behavior during the past fourteen years –

indeed, during a period of time that spans the majority of his

adult life – reveals no acts that conceivably come close to the

sort of malfeasance present in our aforementioned precedent. 12 On

these facts, there is not much more that he could have done to

demonstrate that he is in control of his volitional faculties

and that such control is likely to persist after his release.

The district court should have been aware of the uniqueness of

Antone’s    factual   record.   As   such,    it   was   imperative   for   the




     12
       The district court made reference to the fact that Antone
had not attended sex offender treatment. Antone had, however,
repeatedly sought this treatment at the beginning of his
incarceration to no avail. It is true that he was eventually
offered sex offender treatment sometime in September 2008, but
this choice was effectively no choice at all. At that point, the
Government was proceeding with its efforts to civilly commit
Antone, and any treatment received would be at the cost of
providing the Government with additional fodder to use against
him in those proceedings.

     The district court also noted that Antone’s institutional
conduct “has not been without incident.” J.A. 1114. It cited to
his two sanctions for fighting, both of which occurred before
2004, and the presence of “inappropriate materials” in his cell.
We reject the notion that the prison’s confiscation of the
magazine Maxim can rise to the level of malfeasance discussed
above.



                                      33
court to comprehensively address why it believed Antone’s recent

behavior was overshadowed by his past acts. It failed to do so.

      In Wooden, we recently confronted a situation in which we

believed that the district court had failed to consider relevant

and     substantial           evidence          of      a      respondent’s             volitional

impairment. 693 F.3d at 458-62. There, the district court had

rejected the petition for civil commitment, finding that the

Government       had    failed       to    demonstrate              clear     and       convincing

evidence       that    the     respondent            would    have     serious          difficulty

refraining      from        re-offending.        Our        review     of    the    evidentiary

record   led     us    to    hold    otherwise.             Because    the       district    court

relied    on    a     flawed    expert         opinion       and     ignored       or    otherwise

failed    to    account        for   a    “substantial              body    of    contradictory

evidence,” we found reversible error. Id. at 461.

      Here,     as     in    Wooden,      we    have        again    been     “left      with   the

definite and firm conviction that a mistake has been committed.”

Id. The “core” of Antone’s case was his decade-long process of

rehabilitation.         Antone       called           three     separate          witnesses     to

support his position that, as a result of his efforts to obtain

treatment, he had improved his ability to control his impulses.

The district court’s one-sentence dismissal of Antone’s case in

chief    does    not    sufficiently            address       the     valid      and     important

evidence contained therein.



                                                34
       We hasten to note that it was not clearly erroneous for the

district    court      to    place        significant        weight    on    Antone’s      pre-

incarceration       acts         and   behavior        in    reaching       its    predictive

finding.     A   respondent’s              criminal         record    “may        well   be    a

historical factor, but it is by no means a stale or irrelevant

one. When the question is whether an inmate . . . will have

serious    difficulty         refraining         from       re-offending      if    released,

consideration       of      the    nature       of    his    prior    crimes       provides     a

critical part of the answer.” Wooden, 693 F.3d at 458. Rather,

the deficiency here lies primarily in the Government’s failure

to     muster,   and     the       district          court’s    failure      to     hold      the

Government to its obligation to muster, sufficient evidence of

an ongoing volitional impairment in this case. The mixed finding

that    ensues   is      “against         the    clear       weight    of    the     evidence

considered as a whole” and constitutes reversible error.

        As both the magistrate judge and Dr. Daum recognized, in

analyzing    whether         a    respondent         will    have     serious      difficulty

refraining from re-offending, one must look to his past and his

present     condition.            Here,    Antone       has     presented         significant

indicators that he presently “has problems, takes responsibility

for them, and seeks help for them,” and his pre-incarceration

malfeasance cannot be the sole relevant factor of consideration.

J.A. 883. We certainly do not fault the Government, as whatever

evidence it had, it presented, but that evidence largely (and

                                                35
certainly     equally)     serves      to     bolster     Antone’s      asserted

rehabilitation      and   his    subsequent      capacity    for     volitional

control.

       The   Government   contends     that    the     district    court   amply

justified its conclusion by relying on the testimony and reports

of its expert witness Dr. Phenix. 13 It is true that Dr. Phenix

opined that Antone met the volitional impairment prong, and we

are “reluctant to set aside a finding based on the trial court’s

evaluation of conflicting expert testimony.” Hendricks v. Cent.

Reserve Life Ins. Co., 39 F.3d 507, 513 (4th Cir. 1994). Yet we

cannot unreservedly accept the district court’s election to give

determinative    weight    to   Dr.    Phenix’s      opinions,    and   for    two

reasons.

       First, Dr. Phenix’s conclusion as to whether Antone would

have serious difficulty in re-offending was based on multiple

diagnoses      (including,      most    importantly,        paraphilia        NOS,

nonconsent) that were subsequently rejected by the magistrate

judge and the district court. Indeed, Dr. Phenix testified that

Antone’s “paraphilic disorder is primarily responsible for so

many    incidents   of    nonconsenting       sexual    activity     and   child


       13
        The district court did not state that it relied on Dr.
Gutierrez’s report or testimony for its conclusion on the third
prong, and we agree that Dr. Gutierrez’s statements do not give
rise to clear and convincing evidence of volitional impairment.



                                       36
molest[ation],”         and   that    her     other     two     diagnoses,         substance

dependence      and     antisocial    personality         disorder,         served     as     a

“contributor”      or     “permission       giver.”      J.A.       318,   325.     But     the

district       court     concluded    that       Antone       did    not     suffer        from

paraphilia,       the     primary     diagnosis         supporting          Dr.     Phenix’s

conclusions.      The     fact    that   the      court    rejected         Dr.     Phenix’s

paraphilia       diagnosis       significantly          minimizes      the        amount     of

persuasive       force     retained      by      her    opinion       as     to     Antone’s

volitional impairment. 14

     Second, and more fundamentally, Dr. Phenix’s evaluation of

Antone suffers from the same flaw as the conclusion ultimately

put forth by the district court. The expert report submitted by

Dr. Phenix focuses almost exclusively on events that occurred

prior     to    1997;     indeed,     she     admitted        as     much     during        her

testimony. Dr. Phenix explained that her decision to focus on

pre-incarcerative         acts    stemmed        from   her     belief      that     actions

taken while in the outside world are more accurate predictors of


     14
         When  specifically  questioned   on  her   thoughts  on
commitment without her paraphilia diagnosis, Dr. Phenix did
opine that she would still consider Antone to be a sexually
dangerous person. She clarified that this was because she
“believe[d] that he will go on to commit criminal sexual
behavior.” J.A. 420. Dr. Phenix’s analysis of future criminality
is not the legal inquiry at stake in § 4248 commitment, which
looks instead to an individual’s volitional control. For this
reason, this statement is insufficient to meet the Government’s
heightened burden.



                                            37
future behavior upon release. That is, of course, her choice,

but as it relates to our review of the evidentiary record, it

will not carry the day. The district court should have at the

very     least      explained    why    it        found    Dr.        Phenix’s       unadorned

conclusion       more     persuasive         than       that     of      Dr.     Daum,       who

specifically critiqued the former’s technique because it did not

allow for a respondent’s subsequent growth. We find that Dr.

Phenix’s conclusion on volitional impairment is insufficient to

satisfy       the    Government’s       heightened             clear     and     convincing

evidence burden. Cf. Wooden, 693 F.3d at 457 (finding that the

“many deficiencies” in an expert’s testimony “leave us firmly

and     definitely      convinced      that       the     district       court’s       factual

findings were mistaken.”).

        The   Government    next       contends         that    the     district       court’s

consideration of Antone’s recent behavior was sufficient because

it explicitly adopted the magistrate judge’s factual findings

and     credibility      determinations           related        to    the     lay     witness

testimony. We reject this argument. Even though the district

court    acknowledged      its    awareness         of     the    testimony,          that    by

itself does not indicate to us that it adequately considered its

impact. If, after reading the opinion, we cannot understand how

the district court came to its conclusions, then we will be

unable to perform a cogent analysis on its merits.



                                             38
       Factfinding        is        “a      dynamic,        holistic         process          that

presupposes for its legitimacy that the trier of fact will take

into account the entire record before it.” Taylor v. Maddox, 366

F.3d 992, 1007 (9th Cir. 2004). When “the court’s account of the

evidence is not plausible in light of the record viewed in its

entirety,” then it is not entitled to deference upon our review.

Wooden, 693 F.3d at 460. Here, the district court disposed of

more   than   a     decade       of      evidentiary       data     points    in    a   single

sentence, and we cannot find that it properly took into account

all substantial evidence.

       Nor can we, on the merits of the matter, find that the

Government presented clear and convincing evidence that Antone

will   have   serious          difficulty      refraining         from   re-offending           if

released.     The     Supreme          Court    has        stated    that     the       serious

difficulty    element          is    intended       to   distinguish      the      “dangerous

sexual   offender”        from        the   “dangerous        but    typical       recidivist

convicted     in     an    ordinary         criminal         case    who,     having          been

convicted and punished for one crime, proceeds through his own

free choice to commit another.” Kansas v. Crane, 534 U.S. at

413. Here, then, the Government must demonstrate that Antone’s

particular manifestation of his mental illnesses are so severe

and    controlling        as    to       deprive     him    of    his    liberty        for    an

indeterminate future.



                                               39
     That is not the case. Clear and convincing evidence equips

a   factfinder      with   “a    firm      belief    or     conviction,      without

hesitancy,” of the truth of the matter asserted, and, on the

record before us, we possess no such conviction about the grip

strength of Antone’s mental illness on his behavior. Springer,

715 F.3d at 538. We have already cited the substantial evidence

in the record indicating that Antone has developed a level of

general and social self-regulation; indeed, on these facts, we

are hard-pressed to suggest much else that he could possibly do

to undercut the notion that he would have serious difficulty in

restraining    from     re-offending.           What’s    more,   Antone’s     civil

commitment     is     based     on    two       mental     disorders    that     are

undisputedly     prevalent      in   the    nationwide      prison   population. 15

See, e.g., Kansas v. Crane, 534 U.S. at 412; see also Jack

Vognsen & Amy Phenix, Antisocial Personality Disorder is Not

     15
        In Kansas v. Crane, the Supreme Court recognized the
“constitutional importance of distinguishing a dangerous sexual
offender subject to civil commitment from other dangerous
persons who are perhaps more properly dealt with exclusively
through criminal proceedings.” 534 U.S. at 412. In fact, in
making this precise point, the Court cited to the wide
prevalence of antisocial personality disorder among inmates -
one of the two mental illnesses at issue in the instant case.

        In his brief, Antone has contended that the language in
Crane supports his position that it is unconstitutional to
commit individuals under § 4248 who do not suffer from a
paraphilia. Because we hold that, on the evidentiary record
before us, Antone has not been shown to be a sexually dangerous
person, we do not reach this question.



                                           40
Enough: A Reply to Sreeivasan, Weinburger, and Garrick, 32 J.

Am. Acad. Psychiatry Law 440, 442 (2004) (J.A. 1035-37) (noting

that 50 to 70 percent of the ordinary prison population suffers

from antisocial personality disorder); Dept. of Justice, Bureau

of    Justice   Statistics,          Christopher        J.     Mumola        &    Jennifer       C.

Karberg, Drug Use and Dependence, State and Federal Prisoners,

2004 1 (2004), available at

http://www.bjs.gov/content/pub/pdf/dudsfp04.pdf (finding that 45

percent    of     federal        prisoners       met    DSM-IV         criteria        for     drug

dependence      or    abuse)       (last     visited         January        31,       2014).    We

conclude that, under the clear and convincing evidence standard,

the    Government         has     failed    to     distinguish          Antone’s         alleged

volitional      impairment         from    that    of   a    “dangerous           but    typical

recidivist.” Kansas v. Crane, 534 U.S. at 413.

                                             G.

       Finally,      we     turn    to     the    issue      of    Antone’s           supervised

release. The         district      court’s       position      seems        to   be     that,    if

Antone were to contest the terms of his supervised release in

front of his sentencing court in Arizona, then the sentencing

court would be bound by Ninth Circuit law and hold that his

supervised      release         expired    in     February        2012.      See      United     v.

Turner, 689 F.3d at 1121 (holding that civil detention under the

Walsh Act does not toll supervised release). On appeal, Antone

contends   that       the       district    court      erred      as    a    matter      of     law

                                             41
because it failed to consider the possibility that he would be

judicially       estopped       from    challenging         his    expressly-agreed-to

supervised       release     in    the    course       of    this       civil       commitment

litigation.

     As we hold that the evidence in this record is insufficient

under the clear and convincing standard to support the district

court’s predictive judgment of Antone’s volitional impairment,

we need not wade into this legal issue at this time, nor do we

find any reason to do so. Antone has given no indication that he

will challenge his status as a supervised releasee under the

judgment of       the   Arizona        district    court,         and    it    is       therefore

premature    to    anticipate       that      Turner    will       even       be    invoked     in

front of the sentencing judge. Indeed, it is our understanding

that the sentencing judge has accepted a recommendation by joint

agreement    (signed       by     Antone)      that    imposes          as    an     additional

condition of his supervised release a 365-day term in a halfway

house     upon    his   release        from    federal       custody.          Whether        this

modification       changes      the     application         of    Turner           is   for    the

district court in Arizona (or another federal district court

should Antone’s supervision be transferred) to decide, not this

court or the North Carolina district court. 16


     16
        As for judicial estoppel, it, too, is prematurely in
front of this panel. Antone has not at this point “adopt[ed] a
position that is inconsistent with a stance taken in prior
(Continued)
                                              42
      At oral argument before us, counsel for Antone reported

that Antone is currently attending sex offender therapy. 17 One

can   only    be    encouraged       by     Antone’s      commitment       to   self-

improvement, rehabilitation, and recidivism prevention.

                                          III.

      For the reasons set forth, we conclude that the appellate

record does not support the district court’s determination that

Antone would have serious difficulty refraining from sexually

violent conduct if released. It may be that we would affirm the

judgment     were    the      Government’s          burden     one    of    a    mere

preponderance, but it is not and we do not. The Government has

not established by clear and convincing evidence that the facts

and   circumstances      of   this    case       establish     that   Antone    is   a

sexually     dangerous     individual           subject   to    commitment      under



litigation,” and the Government has not invoked the defense of
judicial estoppel. See generally Zinkand v. Brown, 478 F.3d 634,
638 (4th Cir. 2007). However, if the tolling issue does
ultimately come before a federal district court, the court will
surely consider the relevance of Antone’s consistently expressed
intent to complete his term of supervised release upon his
release from the Bureau of Prisons.
      17
        We note that Antone has been attending sex offender
therapy in spite of its potential impact on future civil
commitment hearings. See generally Jeslyn A. Miller, Comment,
Sex Offender Civil Commitment: The Treatment Paradox, 98 Cal. L.
Rev. 2093, 2115 (2010) (explaining that “[e]verything that an
offender confesses during these multiple stages of treatment -
including sexual fantasies, uncharged offenses, and gruesome
details regarding sexual offenses - is discoverable.”).



                                           43
§ 4248. Accordingly, we reverse the judgment of the district

court   and   remand   the   matter     to   the   district   court   with

instructions to dismiss the petition. The mandate shall issue

forthwith.

                             REVERSED AND REMANDED WITH INSTRUCTIONS;
                                           MANDATE TO ISSUE FORTHWITH




                                   44
