                              PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 13-6043


UNITED STATES OF AMERICA,

                Petitioner - Appellee,

           v.

JOSE DE LA LUZ PEREZ,

                Respondent - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (5:11-hc-02015-BR-JG)


Argued:   January 28, 2014                       Decided:   May 15, 2014


Before TRAXLER,   Chief   Judge,   and    MOTZ    and   THACKER,   Circuit
Judges.


Affirmed by published opinion.    Chief Judge Traxler wrote the
opinion, in which Judge Motz and Judge Thacker joined.


ARGUED: Jenna Turner Blue, BLUE, STEPHENS & FELLERS, LLP,
Raleigh, North Carolina, for Appellant.   Matthew Fesak, OFFICE
OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for
Appellee.   ON BRIEF: Thomas G. Walker, United States Attorney,
R.A. Renfer, Jr., Edward D. Gray, Assistant United States
Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.
TRAXLER, Chief Judge:

      Jose De La Luz Perez appeals from an order of the district

court concluding after an evidentiary hearing that Perez is a

“sexually dangerous person,” 18 U.S.C. § 4248(a), under the Adam

Walsh Child Protection and Safety Act of 2006 (the “Act”), Pub.

L. No. 109–248, 120 Stat. 587, and committing him to the custody

of the United States Attorney General.                       Perez asks us to vacate

the civil commitment order, contending that the district court

lacked personal jurisdiction because the government failed to

serve him with a summons pursuant to Rule 4 of the Federal Rules

of   Civil    Procedure.          Alternatively,         Perez       argues     that   the

district     court’s      finding   that       he   is       a    “sexually     dangerous

person”    under    the     Act   was   clearly     erroneous.             As    explained

below, we affirm.

                                         I.

      Under the Act, the government has the authority to civilly

commit     “sexually      dangerous”       federal           inmates      following    the

expiration    of    their     federal    prison     sentences.             18    U.S.C.   §

4248(a); see United States v. Wooden, 693 F.3d 440, 442 (4th

Cir. 2012). The statute defines a “sexually dangerous person” as

one “who has engaged or attempted to engage in sexually violent

conduct or child molestation and who is sexually dangerous to

others.”     18    U.S.C.    §    4247(a)(5).            A       person   is    considered

“sexually dangerous to others” if “the person suffers from a

                                           2
serious mental illness, abnormality, or disorder as a result of

which    he    would     have     serious   difficulty         in    refraining      from

sexually violent conduct or child molestation if released.”                           Id.

§ 4247(a)(6) (emphasis added).

     The      Attorney    General      or   the   Director      of    the   Bureau    of

Prisons (“BOP”) may commence a § 4248 commitment proceeding by

filing with the clerk of court for the district in which the

respondent      is     confined    a   certification       that      the    person    is

sexually dangerous as defined by the Act.                      See id. § 4248(a).

The “filing automatically stays the release of the person from

custody pending a hearing before the district court.”                           United

States v. Heyer, 740 F.3d 284, 286 (4th Cir. 2014); see 18

U.S.C.   §    4248(a).      The     district      court   is    then    “required      to

convene a hearing to afford the government the opportunity to

prove the ultimate truth of its certification.”                        United States

v. Caporale, 701 F.3d 128, 131 (4th Cir. 2012); 18 U.S.C. §

4248(a) (“The court shall order a hearing to determine whether

the person is a sexually dangerous person.” (emphasis added)).

“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.”      18 U.S.C. § 4248(d) (emphasis added).




                                            3
                                                  II.

       In    December       2011,          Perez       was    incarcerated        at    the    BOP

facility in Butner, North Carolina, where he was serving the

final       few    months     of       a    20-year          federal    sentence        for    (1)

transportation of a minor in foreign commerce with intent to

engage in criminal sexual activity, see 18 U.S.C. § 2423(a), and

(2) importation of an alien for immoral purposes, see 8 U.S.C. §

1328.       On January 6, 2011, the BOP Certification Review Panel

filed in the Eastern District of North Carolina a certification

seeking to have Perez civilly committed as a “sexually dangerous

person.”          18 U.S.C. § 4248(a).                    Perez subsequently moved to

dismiss      the     commitment            proceedings         on   the      basis     that    the

government failed to comply with Rule 4(c)(1) of the Federal

Rules of Civil Procedure by failing to serve a summons.                                        The

United      States    filed    a       response         in   opposition      to   Mr.    Perez’s

motion,      arguing    that       §       4248    only      requires     the     filing      of   a

certification to initiate commitment proceedings, not a standard

civil summons.          The United States argued, in the alternative,

that    Perez’s      service       of      process      argument       was   barred     by    Rule

12(h)(1) because he failed to raise it in a prior motion that

addressed other procedural issues.                            The district court denied

the motion to dismiss on slightly different grounds, concluding

that even if service of the summons was required here, dismissal

was not mandatory where, as here, Perez received actual notice

                                                   4
of the § 4248 proceeding and suffered no prejudice from the

government’s failure to serve him with a summons.

      As mandated by the Act, the district court conducted an

evidentiary hearing “to determine whether [Perez was] a sexually

dangerous person.”          18 U.S.C. § 4248(a).                    Any person subject to

a hearing pursuant to the Act “shall be represented by counsel”

and “shall be afforded an opportunity to testify, to present

evidence, to subpoena witnesses on his behalf, and to confront

and   cross-examine       witnesses       who      appear       at     the    hearing.”        18

U.S.C.    §   4247(d);      see   id.     §    4248(c)         (“The    hearing       shall    be

conducted      pursuant     to    the     provisions           of    section      4247(d).”).

Perez moved to proceed pro se, and the court found that Perez

knowingly      and    voluntarily         elected         to    appear        without       legal

counsel.        Believing        that    the       proceedings         against        him   were

unlawful,     however,      Perez       refused      to    be       present      or   otherwise

participate      in   the    hearing.              Accordingly,         the      hearing      was

conducted in Perez’s absence.

      The     government     presented         the    expert         testimony        of    three

forensic      psychologists         who       each        performed          a    pre-hearing

evaluation of Perez for the purpose of determining whether he

was   a   “sexually      dangerous        person”         under      the     Act:       Dr.    Hy

Malinek, a forensic psychologist who has evaluated hundreds of

individuals in § 4248 commitment proceedings; Dr. Heather Ross,

also a forensic psychologist specializing in the assessment of

                                               5
sex offenders; and Dr. Joseph Plaud, a forensic psychologist who

was appointed on behalf of Perez.               See 18 U.S.C. § 4247(b).           All

three experts prepared written reports stating their opinions

and summarizing the bases for their opinions.

       In   making   their     assessments,      all    three     experts   reviewed

Perez’s      criminal      history         records     which      established      the

following.        In September 1970, Perez was arrested for abducting

a   seven-year-old       boy   at   a     laundromat   in   San    Antonio,   Texas.

Perez drove the boy to a motel where he held the boy overnight

and forced him to engage in oral sodomy numerous times.                            The

next morning, Perez dropped the boy off in the street fifteen

blocks away from his home.                Perez was convicted in Texas state

court of kidnapping a minor from his parents and sentenced to 25

years imprisonment.            See Perez v. State, 478 S.W.2d 551 (Tex.

Crim. App. 1972).        He was released on parole in May 1979.

       In May 1982, Perez made sexual contact with a nine-year-old

boy in a dressing room at a mall.               The boy’s mother reported the

incident to a security officer who then returned with the boy to

the dressing room and found Perez victimizing a twelve-year-old

boy.    The nine-year-old victim identified Perez as the molester.

In each case, Perez approached the boy and offered him money to

try on jeans, suggesting that they were the same size as Perez’s

nephew,     for   whom   Perez      was    shopping.     Each     victim    fell   for

Perez’s ruse, and Perez entered the dressing room with them and

                                            6
asked how the jeans fit.                  Eventually, Perez put his hands down

the boys’ pants and felt their genitals, patted their buttocks,

and asked them to bend over and touch their toes.

      Perez was arrested at the time of the offense in May 1982.

After being placed on bond, Perez fled and evaded detection for

several years.           He was eventually apprehended in March 1987.

The   charge      involving         the     mall        dressing        room    molestation   was

dismissed because the nine-year old victim could not be located,

but Perez was convicted under Texas law in November 1987 of

indecency       with     a     child      in    relation           to    the     twelve-year-old

victim.        The charge also alleged that Perez had one prior felony

conviction for enhancement purposes.                               Perez was sentenced to

five years’ imprisonment in Texas.                            He was paroled in February

1989 and was discharged from parole in August 1992.

      During      the    time        that      he       was    a   fugitive        from   charges

relating to the mall incident in 1982, Perez was convicted of

indecency with a child and sentenced to five years of probation

in    March      1983     in       Texas.           This       offense,         which     occurred

approximately six months after the offense in the mall, took

place     as     Perez       was    selling         subscriptions              door-to-door    and

noticed a young boy in a woman’s apartment.                               After making a sale

to her, Perez left but returned a short time later, asking to

use the telephone.                 While he was on the telephone, the woman

told her ten-year-old son to take the trash out to the dumpster

                                                    7
in the parking lot.              Perez followed the boy into the parking

lot, where he pinched and rubbed the child’s buttocks, touched

him on the front of his pants, and told him to unzip his pants.

The    victim     was    instructed        not      to    tell       anyone    about       what

happened.    Finally, in September 1993, Perez was arrested after

agents from the Immigration and Naturalization Service executed

a search warrant at his house in Texas.                          The agents found two

boys, ages twelve and thirteen, who were living with Perez and

Perez’s father.          The boys were Mexican citizens and were living

in the United States illegally.

       Interviews with the boys revealed that they had been living

with   respondent        and    his    father      for    approximately         two    years,

after respondent picked them up on the street in El Paso, Texas.

The twelve-year-old boy reported that respondent began sexually

abusing    them    the    very     next    day.          The   reported       sexual    abuse

involved    anal    intercourse         and       occurred      in    several    locations

besides    the    home,        including    locations          in    the    state     of    New

Mexico.     Perez also transported the boys to and from Mexico on

several     occasions.            At    least       three      other       children        were

interviewed       during         the    investigation            and       reported        that

respondent had sexually molested them.                         Medical evaluations of

the two reported victims revealed signs consistent with chronic

perianal trauma.



                                              8
     In 1993, Perez pled guilty to Transportation of a Minor in

Foreign    Commerce    with   Intent   to    Engage       in    Aggravated       Sexual

Assault and to Importation of an Illegal Alien for the Immoral

Purpose of Sexual Assault.             He was sentenced to 120 months’

imprisonment on each charge, to be served consecutively, as well

as three years of supervised release.

     In addition to reviewing this criminal offense history, all

three experts sought to interview Perez.                  Drs. Malinek and Ross

were rebuffed by Perez, who refused to cooperate.                      Dr. Plaud was

more successful, eliciting a few limited statements from Perez

relating to his personal sexual history.                       All three experts,

however, found Perez’s statements to Dr. Plaud to be significant

and considered them in assessing Perez’s sexual dangerousness.

The experts unanimously diagnosed Perez with pedophilia, marked

by an exclusive sexual attraction to young males, a condition

all agreed qualified as “a serious mental illness, abnormality,

or disorder.”        18 U.S.C. § 4247(a)(6).         And, finally, all three

experts     agreed     that   Perez    would       have        serious       difficulty

refraining from child molestation upon release from custody.

     The district court found that the government established by

clear     and   convincing    evidence      that    Perez        was     a   “sexually

dangerous person” as defined by § 4247(a)(5), and that civil

commitment was therefore required under § 4248(d).                       First, based

on Perez’s criminal records, the court found that Perez “has

                                       9
engaged or attempted to engage in sexually violent conduct or

child molestation” in the past.                   Id. § 4247(a)(5).              Second,

based on the unanimous opinions of the expert witnesses, the

district    court   concluded       that    Perez    “suffers         from   a   serious

mental illness, abnormality, or disorder.”                          Id. § 4247(a)(6).

And third, relying on the detailed testimony of the experts as

well as Perez’s criminal history, the district court held that

the   government    had    proven    that       Perez’s       pedophilia     “presently

impairs respondent’s volitional ability to refrain from deviant

behavior    and   that,    absent     abatement          by    effective     treatment,

would in the future give him serious difficulty in refraining

from child molestation or sexually violent conduct.”                           J.A. 181-

82.

                                       III.

      In an appeal from an order granting or denying a civil

commitment    under    the    Act,    “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).       Perez’s      first   challenge         to        the   district     court’s

commitment order is a purely legal one—that the district court

could not exercise personal jurisdiction over him because he was

never served with a summons pursuant to Rule 4.                        We reject this

argument.



                                           10
      A civil action in federal court commences with the filing

of a complaint, see Fed. R. Civ. P. 3, and personal service of a

summons and a copy of the complaint upon the defendant, see Fed.

R. Civ. P. 4(c)(1).                 Rule 4 dictates that the summons must,

among other things, identify the court and the parties; apprise

the defendant when he or she must appear to defend against the

allegations; and warn the defendant that failure to appear will

result in a default judgment in favor of the plaintiff.                                       See

Fed. R. Civ. P. 4(a)(1).                  If the summons is not served on the

defendant      within     120       days     after         the    complaint        is    filed,

dismissal is required unless the district court extends the time

for   good    cause     shown.        See    Fed.          R.   Civ.    P.   4(m).       It    is

undisputed that the government never served Perez with a summons

and   that    no   extension         of   time       was    sought      or   granted.         The

government contends, however, that service of a standard civil

summons      under    Rule      4    is     not      required          to    commence     civil

commitment      proceedings          under       §    4248       against      an      allegedly

“sexually dangerous person” in the custody of the BOP.

      As Perez points out, a commitment proceeding under § 4248

is civil and not criminal in nature, see United States v. Timms,

664   F.3d     436,     455-56       (4th    Cir.          2012),      and    thus,     broadly

speaking, the Federal Rules of Civil Procedure would apply to a

§ 4248 commitment proceeding.                     Rule 1 provides that “[t]hese

rules govern the procedure in all civil actions and proceedings

                                             11
in the United States district courts, except as stated in Rule

81.”    Fed. R. Civ. P. 1.          Although Rule 81 enumerates several

types of civil actions or proceedings to which the Rules of

Civil Procedure, to one extent or another, do not apply, a civil

commitment proceeding pursuant to 18 U.S.C. § 4248 is not among

them.      See Fed. R. Civ. P. 81.

        That the Rules of Civil Procedure generally apply to civil

commitment proceedings under the Act, however, does not mean

that they cannot be displaced by specific procedural provisions

included in the Act.         Congress “has ultimate authority over the

Federal Rules of Civil Procedure; it can create exceptions to an

individual rule as it sees fit—either by directly amending the

rule or by enacting a separate statute overriding it in certain

instances.”       Shady Grove Orthopedic Assocs., P.A. v. Allstate

Ins. Co., 559 U.S. 393, 400 (2010).            The question is whether the

Act requires the government to serve a summons pursuant to Rule

4   upon    a   respondent   in    federal   custody    despite   the    obvious

differences       between    the     initiation    of     civil    commitment

proceedings under § 4248 and a typical civil action.                    We think

not.

       The Act does not expressly indicate whether service of a

summons is required; “service of process” under Rule 4 is simply

not mentioned.        However, the Act is not silent as to how to



                                       12
initiate and to notify the respondent of a § 4248 commitment

proceeding:

      Institution of proceedings.   In relation to a person
      who is in the custody of the Bureau of Prisons, . . .
      the Attorney General or any individual authorized by
      the Attorney General or the Director of the Bureau of
      Prisons may certify that the person is a sexually
      dangerous person, and transmit the certificate to the
      clerk of the court for the district in which the
      person is confined.    The clerk shall send a copy of
      the certificate to the person, and to the attorney for
      the Government . . . .

18   U.S.C.   §    4248(a)    (emphasis        added).      The    Act    provides   a

streamlined       procedure    for    initiating         commitment      proceedings

against individuals in BOP custody who have been certified as

“sexually     dangerous”      under   §    4248.         Under    the    Act,   “[t]he

Attorney General, his designee, or the Director of the [BOP] may

initiate a § 4248 commitment proceeding in the district court

for the district in which the person is confined by filing a

certification that the person is sexually dangerous within the

meaning of the Act.”          Heyer, 740 F.3d at 286 (emphasis added).

And, rather than require the government to effect formal service

of the certificate and a standard summons upon the respondent,

the Act directs the clerk of court simply to “send a copy of the

certificate to the person” in BOP custody who was certified as

“sexually dangerous.”         18 U.S.C. § 4248(a).

      We conclude that the procedure set forth in 18 U.S.C. §

4248(a) for initiating proceedings for the civil commitment of a


                                          13
sexually dangerous person supplants the summons requirement set

forth in Rule 4.           Service of process pursuant to Rule 4 serves

two   primary    functions       in   a   typical     civil   action    in    federal

court:   it provides formal notice to the defendant to appear and

defend   against      an   action     that   has    been    commenced    in    federal

court,   and    it    is   the   means    by    which   the   court     asserts    its

personal jurisdiction over the defendant.                   See Henry H. Perritt,

Jr., Jurisdiction in Cyberspace, 41 Vill. L. Rev. 1, 31 (1996)

(“Service of process performs two functions in Anglo-American

civil procedure: it represents assertion of judicial power of

the forum state over the person of the defendant, and it is the

formal means of providing notice to the defendant so that he or

she may defend the lawsuit.”).                  In the unique context of a §

4248 proceeding, however, service of a standard summons under

Rule 4 is not necessary to perform either function.

      First, the paramount function of serving a summons is to

provide formal notice to the defendant that action is required

to avoid liability and preserve his or her rights.                       Service of

the summons apprises a defendant “of the pendency of the action”

and “afford[s] [the defendant] an opportunity to present [his]

objections.”         Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80,

84 (1988) (quoting Mullane v. Central Hanover Bank & Trust Co.,

339 U.S. 306, 314 (1950)).             Establishing notification to a civil

defendant      through     proper     service    of   the   summons     is    critical

                                          14
since,   among     other    things,       service    of     the    summons    triggers

defendant’s duty to file a responsive pleading to the complaint,

see Fed. R. Civ. P. 12(a)(1)(A)(i) (“A defendant must serve an

answer . . . within 21 days after being served with the summons

and complaint.”), and the failure to respond in a timely fashion

can result in liability being imposed by default, see Fed. R.

Civ. P. 55(a).

      The respondent in a § 4248 civil commitment proceeding, by

contrast, is not required to file any responsive pleading and

faces no risk of a contrary merits determination being entered

by default or without his knowledge.                 In fact, Congress afforded

§ 4248 respondents a number of procedural safeguards, including

a mandatory evidentiary hearing, see 18 U.S.C. § 4248(a) (“The

court shall order a hearing to determine whether the person is a

sexually dangerous person.”); id. § 4248(d) (granting district

courts the power to “commit the [respondent] to the custody of

the   Attorney     General”     after     the    mandatory        hearing);    and   the

right    to   be   represented       by     an   attorney         at   the    mandatory

evidentiary hearing, see id. §§ 4248(c), 4247(d) (providing that

“[a]t    a    hearing      ordered        pursuant     to     this      chapter      the

[respondent] . . . shall be represented by counsel and, if he is

financially    unable      to   obtain     adequate    representation,         counsel

shall    be   appointed     for   him”).         Moreover,        at   the    mandatory

hearing, the respondent “shall be afforded an opportunity to

                                           15
testify,    to     present     evidence,      to      subpoena   witnesses    on    his

behalf, and to confront and cross-examine witnesses who appear

at the hearing.”          Id. § 4247(d).           In light of these procedural

safeguards inherent in § 4248 proceedings, receipt of a copy of

the   certificate       initiating       commitment      proceedings    suffices        to

provide notice to the respondent—and it is undisputed that Perez

was   provided     a    copy   of   the    certificate      seeking    to    have   him

committed     as    a   “sexually        dangerous      person.”      Service      of    a

summons is unnecessary in this context in view of the fact that

Congress provided another means of notifying the respondent of

the proceedings as well as several procedural safeguards. 1                         See

Meadows v. Krischer, 763 So. 2d 1087, 1091 (Fla. Dist. Ct. App.

1999)     (concluding     that      “a    standard      civil    summons    would       be

unnecessary” to initiate proceedings under Florida law providing

for the civil commitment of “sexually violent predators” where

the law did not require service of a regular civil summons).

      A second function performed by service of a civil summons

under Rule 4 is to assert the district court’s jurisdiction over

a   person.        “Before     a    federal      court    may    exercise    personal

jurisdiction       over   a    defendant,       the    procedural   requirement         of

service of summons must be satisfied.                   Service of summons is the

procedure by which a court having venue and jurisdiction of the

      1
       Perez does not challenge the constitutional sufficiency of
the notice prescribed by 18 U.S.C. § 4248(a).


                                           16
subject matter of the suit asserts jurisdiction over the person

of the party served.”             Omni Capital Int’l, Ltd. v. Rudolf Wolff

&   Co.,   484   U.S.       97,   104    (1987)    (emphasis    added)   (internal

quotation marks and alteration omitted).                Historically, however,

personal jurisdiction in both the civil and criminal contexts

flowed from physical custody or control over the defendant.                    See

ALS Scan, Inc. v. Digital Serv. Consultants, Inc., 293 F.3d 707,

710-11 (4th Cir. 2002) (“[T]he limits on personal jurisdiction

were grounded in a court’s power over the actual person of the

defendant.    Thus,     a    person’s     ‘presence    within    the   territorial

jurisdiction of a court was prerequisite to its rendition of a

judgment personally binding him.’” (quoting Int’l Shoe Co. v.

Washington, 326 U.S. 310, 316 (1945)).                 Over time in the civil

context,     “[t]he     idea      of    ‘minimum   contacts’    developed    as   a

surrogate for actual presence in a State but did not alter the

essentially territorial nature of jurisdiction.”                  Yahoo! Inc. v.

La Ligue Contre Le Racisme Et L’Antisemitisme, 433 F.3d 1199,

1228 (9th Cir. 2006) (en banc) (O’Scannlain, J., concurring in

judgment).       Personal jurisdiction in a criminal case is still

based on physical presence, which is usually acquired by taking

the defendant into custody via arrest.                   See United States v.

Wilson, 721 F.2d 967, 972 (4th Cir. 1983) (“It has long been the

general rule that a court’s power to try a criminal defendant is

not impaired by the government’s use of even forcible abduction

                                           17
to    bring    the    defendant       within      the     court’s       jurisdiction.”);

United States v. Rendon, 354 F.3d 1320, 1326 (11th Cir. 2003)

(“A federal district court has personal jurisdiction to try any

defendant brought before it on a federal indictment charging a

violation of federal law.”).                  Even if physical custody is no

longer      necessary       to     endow      a    civil        court    with    personal

jurisdiction over a defendant, it is clearly sufficient to do

so.     Thus, that the government has physical custody over the

respondent in § 4248 civil commitment proceedings obviates the

need for a summons.

                                           IV.

       Next,    Perez      contends     that      the    district       court   committed

clear error in finding him to be a “sexually dangerous person.”

18 U.S.C. § 4248(d).               “A finding is ‘clearly erroneous’ when

although there is evidence to support it, the reviewing court on

the    entire    evidence        is    left       with    the     definite      and    firm

conviction that a mistake has been committed.”                           Hall, 664 F.3d

at 462 (internal quotation marks omitted).

       To   obtain    a    civil      commitment        order    under    the   Act,   the

government must prove three elements by clear and convincing

evidence.       See United States v. Wood, 741 F.3d 417, 419 (4th

Cir.   2013).        The   government      first        must    demonstrate     that   the

person has previously “engaged or attempted to engage in . . .

child molestation.”          18 U.S.C. § 4247(a)(5); see Wood, 741 F.3d

                                           18
at 419.       Second, the government must establish that the person

currently “suffers from a serious mental illness, abnormality,

or disorder.”          18 U.S.C. § 4247(a)(6); Wood, 741 F.3d at 419.

And    third,     “the    government           is   required       to   show   that    the

defendant, as a result of the illness, abnormality, or disorder,

‘would have serious difficulty in refraining from . . . child

molestation if released.’”                 Wood, 741 F.3d at 419 (quoting 18

U.S.C.    §     4247(a)(6)).          “Clear        and    convincing”     evidence     is

“evidence of such weight that it produces in the mind of the

trier of fact a firm belief or conviction, without hesitancy, as

to the truth of the allegations sought to be established, and,

as well, as evidence that proves the facts at issue to be highly

probable.”       Jimenez v. DaimlerChrysler Corp., 269 F.3d 439, 450

(4th     Cir.    2001)    (internal            quotation     marks,     citations,      and

alterations omitted).          “[T]he ‘clear and convincing’ standard of

proof is an ‘intermediate standard’ that falls between a ‘mere

preponderance of the evidence’ and ‘beyond a reasonable doubt.’”

Hall, 664 F.3d at 461 (quoting Addington, 441 U.S. at 423-24).

       Perez does not dispute that the government established the

first two elements by clear and convincing evidence – (1) that

he     previously      engaged       or        attempted      to    engage     in     child

molestation      and     (2)   that       he    suffers     from    a   serious     mental

illness,      abnormality,      or    disorder,           i.e.,    pedophilia.        Perez

challenges only the district court’s finding that as a result of

                                               19
his pedophilia, “he would have serious difficulty in refraining

from    .    .    .    child        molestation         if     released.”          18    U.S.C.     §

4247(a)(6).                “[T]he    serious        difficulty        prong       of     §    4248’s

certification proceeding refers to the degree of the person’s

volitional        impairment,          which      impacts       the   person’s          ability    to

refrain from acting upon his deviant sexual interests.”                                         Hall,

664 F.3d at 463 (internal quotation marks omitted).                                     The “‘lack

of     control        or     inability       to     control        behavior       will       not   be

demonstrable with mathematical precision.                                It is enough to say

that there must be proof of serious difficulty in controlling

behavior.’”            Id. (quoting Kansas v. Crane, 534 U.S. 407, 413

(2002)) (alteration omitted).

       Perez contends that the government’s evidence rested almost

entirely         on    his     criminal           offense       history       and       failed     to

adequately        account        for       Perez’s       current      level      of     volitional

impairment.            Perez claims, moreover, that any expert opinion

about    his      present       mental       state       and      capacity       for    volitional

control rests on speculation, especially, he points out, because

none    of   the       experts       who    testified        at    the    commitment          hearing

interviewed him.

       First,         we    reject     Perez’s          suggestion        that    the        district

court’s      substantial             consideration           of     his    criminal           offense

history was erroneous or improper.                             Although “[t]he nature of

[Perez’s] prior crimes may well be a historical factor, . . . it

                                                   20
is by no means a stale or irrelevant one.                   When the question is

whether an inmate suffering from pedophilia 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.

      Moreover, it is not entirely accurate to suggest that each

expert evaluation was completed without Perez being interviewed.

Although Perez refused to submit to pre-hearing interviews with

the   government’s    psychologists,         he   ultimately    participated     to

some extent in Dr. Plaud’s interview. 2              Perez refused to discuss

his offense history with Dr. Plaud, but he did comment generally

on his sexual history, denying pedophilic sexual arousal and

“presenting himself as a . . . non-violent, moral heterosexual

male.”     J.A. 109.        Despite this self-characterization, Perez

admitted   to   Dr.   Plaud    that    he    had    never    experienced   sexual

relations with an adult woman.               Because these comments were so

completely at odds with Perez’s offense history, his statements

during the interview raised concerns for Dr. Plaud that Perez

possibly     suffered       “cognitive        distortions,        bordering      on




      2
       Dr. Plaud explained that “[a]t the outset, Mr. Perez did
not indicate . . . that he even wanted to participate in the
interview” but that Perez “reconsidered as [Dr. Plaud] began to
leave.” J.A. 108.



                                        21
delusion[s]” regarding his sexuality.                   J.A. 110. 3          Perez also

told Dr. Plaud that he does not need sexual offender treatment,

supporting     Dr.    Plaud’s      belief      that    Perez    is     “an    untreated

pedophile who is actively denying his sexual arousal patterns.”

J.A. 111.     Dr. Plaud indicated that he learned nothing from the

clinical     interview      that      suggested       Perez    ever    acquired         the

ability to regulate and control his sexual impulses or that he

“has the present-day ability to monitor and control his sexual

impulses.”     J.A. 230.        Significantly, Drs. Malinek and Ross both

considered Perez’s statements to Dr. Plaud and incorporated them

into their own analyses.               Accordingly, the lack of a formal

interview    with     either    Dr.    Malinek    or     Dr.   Ross—which         was   of

Perez’s own making—did not render either report unreasonable or

speculative.

     We conclude that the government easily presented sufficient

evidence to support the conclusion that, by clear and convincing

evidence,    Perez,    as   a    result     of   his    pedophilia,         “would   have

serious difficulty in refraining from . . . child molestation if

released.”       18    U.S.C.      4247(a)(6).           First,       the    government

submitted      written      evaluations          conducted        by        its   expert


     3
       Dr. Plaud also observed, however, that it was difficult to
determine “how serious     . . . he took the entire interview
process” and that Perez may have been merely trying to “elicit a
reaction” from Dr. Plaud by claiming to be a heterosexual male.
J.A. 110.


                                          22
psychologists, Drs. Malinek and Ross.                       Both experts considered

(1) actuarial scales incorporating static risk factors for sex

offenders to determine a statistical likelihood that Perez would

engage in child molestation again, and (2) dynamic risk factors

from the STABLE-2007 scale.                     “[U]nlike static factors, which

typically    are   historical        and        do   not    change,     a   dynamic       risk

factor refers to something that has the capacity to change over

time, for example with treatment.”                      United States v. Bolander,

722 F.3d 199, 209 (4th Cir. 2013).

       Dr. Malinek “considered the most recent published studies

and risk assessment formulas” to determine whether Perez would

at the time of the evaluation have serious difficulty refraining

from   child   molestation          if    released         from   BOP   custody.           Dr.

Malinek applied three different actuarial scales “that assess

baseline     recidivism      risk        in    sexual      offenders.”           J.A.     214.

First,   Perez’s      risk     of    reoffending           was    assessed       using     the

Static-99R     scale,    which       incorporates          numerous     static       factors

such as prior sex offenses, age at release, and whether the

person had any “unrelated victims,” “stranger victims,” or “male

victims.”      J.A.     215.        Dr.       Malinek   scored     Perez     a   4   on    the

Static-99R, which placed him in the moderate-high risk category

and suggested “recidivism rates of 15.4% in five years and 22.6%

in ten years.”        J.A. 218.           Second, Dr. Malinek used the Static

2002-99R scale.       This risk assessment formula takes into account

                                               23
five    static      categories,             including    age,    persistence        of     sexual

offending,          deviant           sexual    interests,       relationship            to    the

victims, and general criminality.                       Dr. Malinek scored Perez a 7

on    the    Static-2002R,             placing    him    in     the    moderate-high          risk

category.       Offenders assessed with a similar score and grouping

as Perez “have been found to sexually reoffend at a rate of 25.2

percent in five years and 35.8 percent in ten years.”                                   J.A. 220.

Finally, Perez was assessed using the Minnesota Sex Offender

Screening Tool-Revised (MnSOST-R).                           Dr. Malinek gave Perez a

score    of    12     on    the       MnSOST-R,    placing      him    in    the    high      risk

category with an “expected recidivism rate within six years of

release [of] 30 percent.”                    J.A. 221.

       Dr.    Malinek        then       considered       a    number    of     dynamic        risk

factors       taken        from       the    STABLE-2007      scale     “that       have      been

statistically liked with both increased recidivism and decreased

recidivism.”          J.A. 221.             “Significant Negative Social Influence”

for     example,       is         a    well-established         predictor          of     general

recidivism that, in Dr. Malinek’s view, suggests an increased

risk of re-offending for Perez, who had “family, friends, and

acquaintances         who     are       criminally       involved,      have    past       sexual

offenses, . . . or who minimize or deny [Perez’s] sex crimes.”

J.A. 223.        Specifically, Perez’s father lived with him during

the time that he kept two Mexican boys in his home and sexually

abused them.           Dr. Malinek highlighted the impulsive nature of

                                                 24
Perez’s    sexually       deviant    conduct,      exemplified    by    his   having

begun     molesting    his    most     recent      victims     immediately       after

meeting them.       Dr. Malinek also noted that Perez’s pedophilia is

a chronic condition and that it is unlikely that “his decades-

long deviant interest in boys has abated simply as a function

[of the] passage of time,” J.A. 225; and that Perez has molested

new victims while on supervised release or on bond for similar

offenses,     and   that    there    was   no   information      to    suggest   that

Perez had ever maintained a stable intimate relationship.

     Based     on   his    assessment      using    the   foregoing     static    and

dynamic risk factors, Dr. Malinek concluded in his report that

Perez   met   the     statutory     criteria    for    civil     commitment      as   a

sexually dangerous person.            Dr. Malinek reiterated this opinion

during his testimony at the hearing, emphasizing the chronic

nature of his long-term pedophilic fixation, and the impulsive

and brazen nature of his sexual offense against children:

     [Perez’s pedophilia] has spanned for decades, has led
     him to engage in sexual molestation of multiple boys
     over a period of 25 years. . . .

     . . . His pedophilic urges have repeatedly led him to
     act out, have been evident in volitional impairments
     time and again, have been evident in [the] predatory
     search for victims, have been evident in both
     opportunistic and predatory crimes, have been evident
     in recidivism on three occasions . . . and while on
     conditional release on three separate occasions.

     . . .

     . . .    These are mostly stranger children that he’s
     never met before. . . .
                                           25
       . . .

       [T]here is no evidence that he had developed any
       emotional attachment or relationship with these kids.
       It looks like this was a predatory search for the
       primary purpose of sexual victimization to me.

J.A.   127-130.          Dr.    Malinek       viewed    the    impulsive       and       public

nature of Perez’s offenses as particularly illustrative of the

danger he poses to his preferred victims:

       The crimes here are both impulsive and predatory . . .
       in the sense that he takes advantage of an opportunity
       when it presents itself, there’s always a significant
       level of impulsivity evident in it.

       The reference to crimes occurring in a public place,
       in the changing room of a Dillard department store in
       1982 or in the street as happened in November of 1982,
       clearly speaks to . . . brazen, high-risk behavior,
       [in view of] the fact that he could be detected, or
       that the mother of the boy he molested who he was
       trying to sell newspapers to, she could identify him.

       . . . [T]he urge develops very quickly, he acts out on
       it right away in a public place.

J.A.     131.          Finally,        Dr.    Malinek       testified        that    Perez’s

statements       to    Dr.     Plaud     within       six    months     of    the    hearing

reaffirmed       his     opinion        that        Perez    would    have      difficulty

refraining       from        child     molestation.            Specifically,         Perez’s

admission       that    he     never    had    sexual       relations    with       an    adult

female    “means        that     he     is    probably       an   exclusive,         fixated

pedophile” and that “kids are his only way to meet his sexual

needs.”        J.A. 140.         Moreover, Dr. Malinek observed that his

“presentation of himself” to Dr. Plaud as interested in adult

heterosexual relationships suggested he was in denial of his

                                               26
disorder     and     therefore      unlikely     to   change   simply    with    the

passage of time.

       Dr.   Ross     also    provided   a     written   evaluation     addressing

Perez’s sexual dangerousness under § 4248.                     Like Dr. Malinek,

Dr. Ross assessed Perez’s statistical risk of recidivism using

static risk factors under the Static-99R scale and then further

evaluated the statistical results in light of various dynamic

risk factors taken from the STABLE-2007 scale.                    Dr. Ross scored

Perez a 3 on the Static-99R, which put him in the low-moderate

risk category “with about a 9.3% likelihood for being arrested

or   convicted       of   a   new   sexual     offense   within   5   years    post-

incarceration and about a 14.5% likelihood . . . in 10 years.”

J.A.    197.          Dr.     Ross,    however,       noted    that     her     score

underestimated his actual risk due to the scoring of his age

under the Static-99R, which reflects the general tendency for an

offender’s risk of reoffending to decrease significantly after

age 60.      Dr. Ross concluded that “[t]his does not seem likely in

Mr. Perez’s case, however, due to his long history of sexual

offending, as well as the fact that his most recent offenses

(which occurred when he was between 45 and 47 years old) were

also   his    most    egregious.”        J.A.    196.     Ultimately,    Dr.     Ross

opined that Perez would have serious difficulty refraining from

child molestation upon release from prison.



                                          27
       At the hearing, Dr. Ross strengthened her opinion based on

Perez’s       statements    as   recounted       by   Dr.   Plaud.        Dr.   Ross

testified that she would now score Perez a 4 on the Static-99R,

as did Dr. Malinek, in view of Perez’s admission—of which Dr.

Ross was previously unaware—that he has never had a sexually

intimate relationship with an adult.                  Dr. Ross also emphasized

many of the same factors that Dr. Malinek found suggestive that

Perez would experience serious difficulty refraining from child

molestation, including the impulsive, brazen and public nature

of    his     pedophilic    offenses;      the   chronic    nature    of    Perez’s

disorder;      and   his   refusal   to     participate     in   sexual    offender

treatment.

       Dr. Plaud, who was initially engaged on behalf of Perez,

was also called by the government to testify.                        In a written

evaluation prepared pre-trial, Dr. Plaud reported that although

“from a statistical perspective Mr. Perez is at this time [a]

low risk to re-offend sexually . . . , there is evidence that he

may    have    ongoing     and   serious    difficulty      in   refraining     from

further acts of child molestation if he were released.”                         J.A.

230.        Dr. Plaud concluded finally that “[a]t best the data in

this case are equivocal; however, I cannot opine that Mr. Perez

is not a sexually dangerous person at this time.”                         J.A. 231.

At    the    evidentiary    hearing,    however,      Dr.   Plaud    unequivocally

stated that he considered Perez “sexually dangerous” under the

                                           28
Act:     “I am unpersuaded that [Perez] has developed the skills to

control     his     sexual         behavior      as    a    function      of   increased       age,

because I think he is so actively denying the very basis of his

sexual arousal towards pre-pubescent-aged males . . . .                                      That’s

why I think he’s sexually dangerous.”                         J.A. 112-13.

       Although the district court recognized and considered the

statistical rates of recidivism based on the various actuarial

scales, the court explained that it “affords them less weight

than respondent’s past and current conduct, and the testimony of

the experts as a whole.”                    J.A. 179.            The district court noted

that each of the testifying experts identified several factors

as indicative of Perez’s lack of volitional control, including

Perez’s impulsivity, failure to cooperate while on supervised

release,     and        his    brazen      and    risky       behavior     despite      previous

legal    sanctions.                The    district         court   also    gave       significant

weight      to    Perez’s          lack    of    sex       offender    treatment        and    his

apparent         denial       of    pedophilic         sexual       interest.          And,    the

district     court        concluded,        based       on    testimony        from    all    three

experts,         that     Perez’s         age    did       not     mitigate      his    risk    of

recidivism in light of all of the other risk factors.

       In    sum,        the       district      court        carefully        considered      the

evidence         before       it,    and    its        factual      findings      represent       a

permissible         and        reasonable        interpretation           of     the    evidence

presented at the hearing.                       Because we are not “left with the

                                                  29
definite and firm conviction that a mistake has been committed”

by the district court, Hall, 664 F.3d at 462 (internal quotation

marks omitted), we cannot say that the district court clearly

erred in finding, by clear and convincing evidence, that Perez

is sexually dangerous within the meaning of the Act.

                                         V.

      Finally, Perez contends that (1) the Act deprives him of

equal protection under the Fifth and Fourteenth Amendments, and

(2)   the   Act    imposes   an   unconstitutional      criminal    punishment.

Both of these arguments are foreclosed by our decision in Timms.

See   664   F.3d    at   449,     455.        Accordingly,   we   reject   these

arguments.

                                         VI.

      For the foregoing reasons, the order of the district court

is

                                                                      AFFIRMED.




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