             United States Court of Appeals
                        For the First Circuit

Nos. 09-1949, 09-2005

                       UNITED STATES OF AMERICA,

                 Petitioner, Appellant/Cross-Appellee,

                                  v.

                              TODD CARTA,

                 Respondent, Appellee/Cross-Appellant.


             APPEALS FROM THE UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF MASSACHUSETTS

              [Hon. Joseph L. Tauro, U.S. District Judge]


                                Before
                   Boudin and Selya, Circuit Judges,
                    and Laplante,* District Judge.


     Abby Wright and Samantha Chaifetz, Appellate Staff, Civil
Division, Department of Justice, with whom Tony West, Assistant
Attorney General, Michael K. Loucks, Acting United States Attorney,
and Mark B. Stern, Appellate Staff, Civil Division, Department of
Justice, were on brief for petitioner, appellant/cross-appellee.
     Judith H. Mizner, Assistant Federal Public Defender, Federal
Defender Office, for respondent, appellee/cross-appellant.



                           January 15, 2010




     *
         Of the District of New Hampshire, sitting by designation.
           BOUDIN, Circuit Judge.      The federal government sought to

commit Todd Carta under the Adam Walsh Child Protection and Safety

Act, Pub L. No. 109-248, 120 Stat. 587 (2006) ("Adam Walsh Act").

That statute authorizes civil commitment of a person already in

federal   custody,   including   one   finishing   a   sentence   after   a

criminal conviction, if the government shows that he is a "sexually

dangerous person."    18 U.S.C. § 4248 (2006).         The district court

held that the government failed to make the necessary showing; the

government now appeals, and Carta cross-appeals claiming that the

statute is unconstitutional.

           After pleading guilty to child pornography charges in

October 2002, Carta was sentenced to five years in federal prison

and three years of supervised release.      Three years into his term,

Carta requested and was granted a transfer to a federal prison in

North Carolina offering a sex offender treatment program.           Carta

participated in the program for approximately seven months, but

then withdrew without completing the program.

           Carta's treating psychologist noted that even within the

program, he exhibited problematic behavior: reinforcing the deviant

beliefs of others in the program, denying that his behavior was

inappropriate and acting impulsively.       Further, Carta dropped out

of the program partly because of his inability to curb his sexual

interest the program's younger participants, which resulted in

restrictions being imposed on his contact with them.


                                  -2-
          In the course of the program, Carta disclosed details of

his sexual and criminal history that prompted the government's

invocation of the Adam Walsh Act's commitment procedures (in

shorthand, "section 4248").      Carta described his primary sexual

interest as children age 12 to 17 and his secondary interest as

children age 7 to 11, and admitted to having a large child

pornography collection; he usually stored between 10,000 and 20,000

images on his computer and spent 12 to 14 hours daily looking at

child pornography prior to his arrest.

          Carta further admitted to sexually abusing minors on many

occasions, with his youngest victim being a child in diapers.

Carta's long history of sexually abusing minors is detailed in the

district court opinion, United States v. Carta, 620 F. Supp. 2d

210, 212-14 (D. Mass. 2009), and we draw on it (subject to a few

corrections based on our own reading of the record).

                 •Between the ages of 11 and 13, Carta
          performed oral sex on a child in diapers who
          was no more than three or four years old one
          time and on the diapered-child's seven-year-
          old cousin about 10 times; the seven-year-old
          also performed oral sex on Carta.

                  •When he was 15 or 16, Carta shot with
          a BB gun a similar-aged male when the peer
          refused to engage in oral sex; later, Carta
          talked him into oral sex and they engaged in
          it approximately 10 times over a five year
          period.

                    •At age 21, on multiple occasions Carta
          engaged     in oral sex with his 16-year-old
          nephew.


                                  -3-
                 •Between   ages  28   and  34,    Carta
          committed multiple sexual offenses while
          following a rock band; among these were
          offering a 13-year-old boy concert tickets in
          exchange for oral sex and fondling and
          masturbating a 17 or 18-year-old male who was
          passed out from drug use in Carta's van.

                 •When Carta was 30 or 31, he began
          sexually abusing a 13-year-old boy, whom he
          had sexual contact with 30 to 40 times over a
          four year period and referred to as his
          "boyfriend."

                 •At age 33, he engaged in sexual
          contact on separate occasions with two 16-
          year-old males and one 16-year-old female, all
          of whom he met on the Internet.

                 •When Carta was 39, he met a 17-year-
          old male who started living with him; on at
          least one occasion, Carta orally copulated the
          17-year-old's younger brother, who was 15 at
          the time.   Carta also sexually abused a 13-
          year-old   boy  he   met   on  the   Internet,
          performing oral sex on him on multiple
          occasions; one time, Carta convinced the 13-
          year-old to have "three-way sex" with Carta
          and the 17-year-old.

          On March 7, 2007--two days prior to Carta's scheduled

good-time release date--the Bureau of Prisons certified that Carta,

who was being held in a federal facility in Massachusetts, was a

"sexually dangerous person" and began civil commitment proceedings

under section 4248.   Carta moved to dismiss, arguing the statute

was facially unconstitutional on multiple grounds, but after a

hearing the district court denied the motion.     United States v.

Carta, 503 F. Supp. 2d 405, 407 (D. Mass. 2007).    The denial was




                               -4-
without prejudice to an as-applied challenge, which Carta never

made.

               In February 2009, the district court held a three-day

bench       trial   on   whether   Carta    met   the   requirements    for     civil

commitment under section 4248. Experts testified on both sides.

The government expert, Dr. Amy Phenix, testified that, based on

risk factors such as age, frequency of misconduct and lack of

success in treatment, Carta would have serious difficulty in

refraining from child molestation if released.1                    Dr. Phenix said

that Carta suffered from a mental disorder known as "paraphilia not

otherwise specified" that was characterized by "hebephilia."

               Paraphilia     is   characterized        by   the   Diagnostic    and

Statistical Manual of Mental Disorders ("DSM"), a commonly used

reference book in the fields of psychiatry and psychology, as

follows:

               The essential features of a Paraphilia are
               recurrent,    intense    sexually   arousing
               fantasies,   sexual   urges,   or  behaviors
               generally involving 1) nonhuman objects, 2)
               the suffering or humiliation of oneself or
               one's partner, or 3) children or other
               nonconsenting persons, that occur over a
               period of at least 6 months . . . [and that]


        1
      Dr. Phenix's report, like the report of Carta's expert Dr.
Leonard Bard, is under seal; but we note that her diagnosis and
evaluation of dangerousness did not rest simply on Carta's
confession of past incidents but also on his behavior in prison,
his statements about his present feelings and a set of standardized
evaluative   measurements    based    primarily   on    correlating
characteristics of the individual with statistical data about re-
offense.

                                           -5-
            cause clinically significant distress or
            impairment in social, occupational, or other
            important areas of functioning . . . .

Am.   Psychiatric   Ass'n,      DSM    522-23    (4th    ed.    2000).     Carta's

condition was described by Dr. Phenix as paraphilia not otherwise

specified    because    hebephilia--loosely,            sexual    attraction     to

adolescents, Carta, 620 F. Supp. 2d at 217--is not itself an

abnormality specifically listed in the DSM nor is it one of the

specific examples of paraphilia listed in the DSM.                  By contrast,

pedophilia, sexual attraction to children before puberty, is a

listed variety of paraphilia in the DSM.                DSM, supra, at 527-28.

            Dr. Bard, an expert designated at Carta's request, see 18

U.S.C. § 4247(b), conceded that Carta suffered from "numerous

problems" but--based in part on Dr. Bard's own test results--

concluded    that   Carta    would     not   have       serious    difficulty     in

refraining from child molestation if released.                     Dr. Bard also

asserted that hebephilia was not a generally accepted diagnosis in

the mental health community, did not fit within the DSM definition

of    paraphilia,   lacked   diagnostic         criteria    and    could   not    be

consistently defined; that normal adults may find adolescents

arousing; and that articles offered by the government to support a

hebephilia diagnosis were not legitimate peer-reviewed research.

            In   June   2009,    the    district        court    ruled   that    the

government had not proved by clear and convincing evidence that

Carta was a "sexually dangerous person" within the meaning of the


                                       -6-
Adam Walsh Act.        Carta, 620 F. Supp. 2d at 226-27.               Relying on Dr.

Bard's    reasoning,         the   district       court    concluded    that   Carta's

diagnosis of paraphilia not otherwise specified characterized by

hebephilia was not a "serious mental illness, abnormality, or

disorder" under the statute.                Id. at 222-27.          Because having a

defined mental condition is a prerequisite for commitment under

section 4248, the court did not reach the separate question of

whether    Carta     would     have    serious       difficulty     refraining   from

molestation if released.             Id. at 229.          We stayed Carta's release

pending the government's expedited appeal.

              Chapter 313 of the Criminal Code, 18 U.S.C. §§ 4241-4248,

addresses competency to stand trial, disposition of those found not

guilty by reason of insanity and treatment of those in custody who

are found to be suffering from a mental disease or defect.                          One

provision authorizes, and provides procedures for, id. §§ 4246(a)-

(g), continued commitment of individuals in federal custody--

otherwise      due     for     release--where        release      would   "create     a

substantial risk of bodily injury to another person or serious

damage to property of another" by reason of a "mental disease or

defect," id. § 4246(a).

              Appended, with cross-references to the basic scheme, is

a   section    added    by     the   Adam    Walsh    Act    that   addresses    civil

commitment of "a sexually dangerous person" who is in the custody

of the Attorney General or Bureau of Prisons; commitment may


                                            -7-
continue until that person is transferred to state care or "is no

longer sexually dangerous to others" or until that danger can be

controlled by outpatient care and treatment. 18 U.S.C. §§ 4248(a),

(d).   "Sexually dangerous person" and "sexually dangerous to

others" are defined, and the former includes the requirements of

the latter. Id. §§ 4247(a)(5),(6). The combination requires three

elements:

            a prior act (or attempted act) of "violent
            sexual conduct or child molestation";

            "a serious mental illness, abnormality, or
            disorder"; and

            a resulting "serious difficulty in refraining
            from sexually violent conduct or child
            molestation if released."

            Carta   does   not   deny   that   he   has   engaged   in    child

molestation in the past, and the district judge so found.                Carta,

620 F. Supp. 2d at 221-22.         Thus, whether the government could

commit Carta turned on whether he suffered from "a serious mental

illness, abnormality, or disorder" and whether he would have

"serious difficulty" in refraining from further child molestation.

As already noted, the district judge did not reach the latter

question because he ruled the government had failed to show that

Carta suffered from the necessary mental condition.

            On review, we distinguish between what the statute means,

questions of raw fact and the intermediate step of characterizing

the raw facts in the terms of the statute thus defined.             The first


                                    -8-
issue, statutory interpretation, we review de novo, United States

v. Frechette, 456 F.3d 1, 7 (1st Cir. 2006); the second is one of

fact-finding, reviewed for clear error, Fed. R. Civ. P. 52(a)(6);

and the last is the problem of applying a general standard to

specific facts in which some deference is ordinarily accorded the

fact-finder, United States v. Jahagirdar, 466 F.3d 149, 156 (1st

Cir. 2006).

            The district court may have assumed that the statutory

concept is delimited by the consensus of the medical community, but

this is not so.2    Further, a mental disorder or defect need not

necessarily be one so identified in the DSM in order to meet the

statutory   requirement;   several   state   decisions   on   counterpart

statutes have so held. See, e.g., In re Commitment of Frankovitch,

121 P.3d 1240, 1245 (Ariz. Ct. App. 2005); In re Care and Treatment

of Dahl, 167 P.3d 387, 2007 WL 2768036, at *2 (Kan. Ct. App. 2007);

Commonwealth v. Starkus, 867 N.E.2d 811, 819-20 (Mass. App. Ct.

2007).   But in the present case the central problem is that there

is no conflict between the DSM and the government's position, which

the district court appears to have misunderstood.


     2
      See Kansas v. Crane, 534 U.S. 407, 413 (2002) ("[T]he science
of psychiatry, which informs but does not control ultimate legal
determinations, is an ever-advancing science, whose distinctions do
not seek precisely to mirror those of the law."); Kansas v.
Hendricks, 521 U.S. 346, 359 (1997) (same); see also H.R. Rep. 109-
218, pt. 1, at 29 (rejecting for section 4248 a "narrow" approach
to what mental conditions trigger the statute and stating that the
statute instead adopts "commitment standards substantively similar
to those approved by the Supreme Court" in Crane and Hendricks).

                                 -9-
            Believing this to be the position of other federal

courts,3 the district court rejected hebephilia as a "serious

mental illness, abnormality, or disorder," concluding that it does

not   fit   within   the   DSM   category   of   paraphilia   not   otherwise

specified and is not otherwise found within the DSM.          Carta, 620 F.

Supp. 2d at 223-24.        The court also considered whether classing

hebephilia as a mental disorder was "supported by research in the

field of psychology" and whether it was "generally accepted in the

psychiatric and psychological community," finding that although

there is some dispute in the field, hebephilia is "not generally

recognized as a serious mental illness."           Id. at 225-26.

            The problem with the district court's approach is that

paraphilia is expressly a DSM-listed disorder and Carta appears to

fall within this category.        The "essential features" of paraphilia

are "recurrent, intense sexually arousing fantasies, sexual urges,

or behaviors" fixated on a specific "stimuli," which "occur over a

period of at least 6 months" and "cause clinically significant

distress or impairment in social, occupational, or other important

areas of functioning."      DSM, supra, at 522-23.     The DSM states that

frequent objects of fixation are "nonhuman objects," "the suffering



      3
      The district court asserted that "[t]he only federal courts
to have addressed the diagnosis of hebephilia in sexually dangerous
person cases have rejected it as a basis for commitment." Carta,
620 F. Supp. 2d at 222 (citing United States v. Shields, 2008 WL
544940, at *2 (D. Mass. Feb. 26, 2008) and United States v.
Abregana, 574 F. Supp. 2d 1145, 1159 (D. Haw. 2008)).

                                     -10-
or humiliation of oneself or one's partner," and "children or other

nonconsenting persons."   Id.   At first blush, one might think that

a number of those abused by Carta fall easily within the category

of "children or other nonconsenting persons."

          But in any case the DSM includes a catch-all category

called "paraphilia not otherwise specified" that lists, simply as

examples, types of paraphilia, such as fixation on obscene phone

calls, specific body parts, feces or urine.     DSM, supra, at 532.

Based on Dr. Phenix's report, Carta's past history of sexually

abusing minors, his in-prison behavior and his expressed attitudes

seemingly justify classifying him as suffering from a paraphilia:

he has a decades-long sexual fixation on minors that plainly has

"caused significant distress or impairment" in his life.

          With one exception, nothing in Dr. Bard's report appears

directly to contradict this classification.    The exception--which

the district judge noted but did not expressly adopt, see Carta,

620 F. Supp. 2d at 223--is this: in his testimony (rather than his

report), Dr. Bard took the position that the term "children" in the

phrase "children or other nonconsenting persons," which the DSM

uses as an example of a common category of fixations that often

underlie paraphilia, refers only to prepubescent children. He also

stated briefly, but without any detail, that he thought most

clinicians used the term "children" in this manner.




                                -11-
           Dr. Bard reasoned that in describing pedophilia, the DSM

specifically refers to "prepubescent" children; but, if anything,

the explicit qualifier "prepubescent" used in defining pedophilia

would make one think that its omission in the phrase "children and

nonconsenting    persons"    does    not       exclude   young    but   pubescent

adolescents.    The idea that the reference to "children" in the

opening examples of common fixations automatically and definitively

excludes molestation of young teenagers is far from compelling and,

in any case, the "not otherwise specified" category remains.

           So on this record it would be clear error to say that the

DSM definition of paraphilia excluded an intense sexual fixation on

young   teenagers    accompanied    by     a   pattern   of   conduct    such    as

Carta's.   Nor did the district court squarely take this position;

instead, its main concern was one of indefiniteness and over-

inclusion: the district judge said that paraphilia not otherwise

specified should not be stretched to include hebephilia because it

would thereby encompass anyone sexually aroused by post-pubescent

minors, which given the vagueness of the term hebephilia "could

pathologize normal men."      Carta, 620 F. Supp. 2d at 224.

           Given that some teenagers are sexually mature, it is

hardly surprising that the DSM (and the courts) would hesitate to

classify any and all sexual attraction to them as abnormal.                     But

Dr.   Phenix   did   not   claim    that       Carta's   mental   disorder      was

hebephilia; she said it was paraphilia not otherwise specified, and


                                     -12-
the reference to hebephilia merely pointed to adolescents as the

target of his fixation.       This does not mean that everyone sexually

attracted to adolescents is mentally disordered; rather, it means

that one whose urges are so strong as to produce the symptoms and

consequences identified in the DSM and exhibited by Carta could be

so classified in an appropriate case.

          The cases cited by the district judge are not helpful to

his ruling.     In Shields, the trial court rejected hebephilia

standing alone as "a serious mental illness, abnormality, or

disorder," but did not categorically reject the diagnosis of

paraphilia not otherwise specified characterized by hebephilia;

instead, the district court said it lacked an adequate record to

assess the latter diagnosis.       2008 WL 544940, at *2.       In Abregana,

the   court   found    that     paraphilia      not     otherwise    specified

characterized   by    hebephilia   was     a   mental    disorder,   but   that

dangerousness was not established.         574 F. Supp. 2d at 1154.

          In sum, the government's position depended not on showing

that hebephilia is a mental disorder but on showing that Carta's

sexual attraction to teenagers fell within the DSM definition of

paraphilia not otherwise specified; Dr. Phenix provided ample

reason to conclude that Carta fell within the DSM definition, and

nothing in Dr. Bard's report shows why that conclusion is wrong.

We add only that it would be unlikely to take Carta outside the

statute even if we concluded improbably that he fell outside any


                                    -13-
DSM-recognized affliction; as already explained, the reach of

section 4248 is not limited to the specific conditions listed in

the DSM.

            Dr. Bard's report does show that the experts disagree as

to Carta's ability to control his sexual urges toward adolescents.

The government must prove by clear and convincing evidence not only

that Carta has the required mental condition, but also would have

"serious difficulty in refraining from sexually violent conduct or

child molestation if released."         18 U.S.C. § 4247(a)(6).        On the

latter   issue,   Dr.    Bard's    evaluation    favorable    to   Carta    is

reasonably detailed and specific, but so is Dr. Phenix's contrary

position.     Whose     analysis   is   more   persuasive    remains   to   be

determined on remand.

            This brings us to Carta's claims that section 4248 is

facially unconstitutional because the statute is not a valid

exercise of Congress' authority under the Commerce Clause and

because it violates the Due Process Clause of the 5th Amendment and

its encompassed equal protection requirement.           The Supreme Court

has taken under review United States v. Comstock, 551 F.3d 274 (4th

Cir. 2009), cert. granted, 129 S. Ct. 2828 (June 22, 2009), to

resolve a circuit split over Congress' authority to enact section




                                    -14-
4248,       and   so   will    likely     resolve     a    portion    of   Carta's

constitutional claims.4

              Because Carta is being held in custody after his now-

expired sentence, this court concluded that the appeal should be

expedited because affirmance of the district court ruling would

have expedited his release.               Given our disagreement with the

district court's ruling, we turn to the constitutional issues

which,      if    disposed    of   in    Carta's    favor,    would   provide   an

alternative       ground     for   his   release.     In     considering   Carta's

constitutional claims a de novo standard of review applies. United

States v. Rene E., 583 F.3d 8, 11 (1st Cir. 2009), cert. denied,

2010 WL 58720 (Jan. 11, 2010).

              In United States v. Volungus, No. 09-1596, 2010 WL 46968,

(1st Cir. Jan. 8, 2010), we recently rejected the claim that

section 4248 exceeded Congress' power under the Commerce Clause,

finding that the constitutional power that supports the creation of

a federal crime extends, under the Necessary and Proper Clause, to

safeguarding the public against the release of an individual shown

by clear and convincing evidence to remain a significant danger to

the public.       Id. at *1, 4-9.        On this issue, Carta's brief relied



        4
      The Fourth Circuit in Comstock held that section 4248
exceeded Congress' authority and so was unconstitutional. 551 F.3d
at 276. The Eighth Circuit also ruled on this issue but came out
the other way, finding that the statute was within Congress' power.
United States v. Tom, 565 F.3d 497, 508 (8th Cir. 2009), petition
for cert. filed Aug. 6, 2009.

                                         -15-
solely   on     Volungus'   briefing     and   the    Volungus      decision   is

dispositive.

              Carta's due process arguments are that the Constitution

demands that section 4248 commitment proceedings require a jury

trial, proof beyond a reasonable doubt, and additional prior notice

and prompt hearing requirements.           But section 4248 imposes civil

commitment--Carta does not argue otherwise--and Addington v. Texas,

441    U.S.    418,   427-33   (1979),    ruled      that   proof    of   future

dangerousness in a civil commitment proceeding requires only clear

and convincing evidence.       In re Winship, 397 U.S. 358, 368 (1970),

applied a reasonable doubt requirement in a civil proceeding

incarcerating a juvenile for delinquency, which the Court deemed

essentially criminal; but Addington held that civil commitment can

"in no sense be equated to a criminal prosecution,"                 441 U.S. at

428.

              It has been argued (we need not decide the issue) that at

least the criminal standard of proof should be used under section

4248 to show the required past act of sexual violence or child

molestation where it is not embodied in a prior conviction. United

States v. Shields, 522 F. Supp. 2d 317, 331-32 (D. Mass. 2007).

But in this case Carta conceded prior acts of child molestation.

Even if in other cases a higher standard were required, it could be

read into the statute or unconstitutional applications enjoined so




                                    -16-
that facial invalidation would be unwarranted.             See Ayotte v.

Planned Parenthood of N. New Eng., 546 U.S. 320, 328-29 (2006).

              On Carta's jury trial claim, the Supreme Court declined

to require a jury in juvenile delinquency proceedings, McKeiver v.

Pa., 403 U.S. 528, 547 (1971), and the claim to a jury trial right

in civil commitments has been rejected under not only the Due

Process Clause, United States v. Sahhar, 917 F.2d 1197, 1206-07

(9th Cir. 1990), cert. denied, 499 U.S. 963 (1991), but also the

Sixth   and    Seventh   Amendments,   see   e.g.,   Hernandez-Carrera   v.

Carlson, 547 F.3d 1237, 1256 (10th Cir. 2008), cert. denied, 2009

WL 1982389 (Dec. 14, 2009); Poole v. Goodno, 335 F.3d 705, 710-11

(8th Cir. 2003).      Carta cites virtually no law to the contrary.

              Three other due process claims are made. One is that the

key components of section 4248--"serious difficulty in refraining

from sexually violent conduct" resulting from a "serious mental

illness, abnormality, or disorder"--are too vague to comport with

due process. But the criminal law itself is filled with equally

imprecise terms (including fraud, insanity and defenses such as

entrapment and duress).      These terms are sufficiently explicit to

give notice and prevent arbitrary enforcement, and the present

statute also passes muster.        See Peterson v. Gaughan, 404 F.2d

1375, 1377 (1st Cir. 1968) (upholding similar state statute).

              The second claim is based on the failure of section 4248

to specify that a prompt hearing is required and perhaps--whether



                                   -17-
this   is   requisite     is   more   debatable--to     impose   some   prompt

preliminary screening by a neutral magistrate before a substantial

period of detention occurs after the sentence has expired.                 We

cannot say that violations are so likely as to meet the high

standard needed to facially invalidate the statute, McCullen v.

Coakley, 571 F.3d 167, 174 (1st Cir. 2009), and in any event those

defects     could   be   remedied     by    interpolating   requirements   and

remedies where the individual's hearing has been inordinately

delayed, see Ayotte, 546 U.S. at 328-29; see also Shields, 522 F.

Supp. 2d at 336-37.       Carta has now had his hearing, did not bring

an as-applied challenge against the timing of his hearings and does

not on appeal claim prejudice in his ability to present his case.

             This does not excuse what may be a pattern in which the

government certifies prisoners as sexually dangerous mere days

before their scheduled release, thereby guaranteeing that they will

be held for an extended period beyond that date even if there is

little basis for the charge.               Any such practice is a result of

improper administration, not statutory command.               The government

deserves fair warning and a modest additional period to frame the

necessary regulations limiting the period of detention without a

hearing; after that, it is likely to find courts imposing remedies.

             Carta's third claim is that section 4248 does not provide

adequate notice of the proposed basis of commitment.             Section 4248

requires a responsible government official to provide a certificate



                                       -18-
that the target is a "sexually dangerous person" to both the

district    court   and   the    target.     18   U.S.C.   §   4248(a).        The

certificate in Carta's case described some of Carta's past acts of

child molestation, listed his mental diagnoses and summarized the

bases for thinking that he would be dangerous in the future; Carta

fails to explain why such a notice is constitutionally inadequate.

            Carta's equal protection argument is that section 4248

fails rational basis review because the class of individuals

potentially affected by the statute--namely, all federal prisoners-

-does not bear a rational relationship to the government purpose of

incapacitating      "sexually      dangerous"     individuals.     The     equal

protection argument builds on Baxstrom v. Herald, 383 U.S. 107

(1966), where the Supreme Court disallowed a state commitment

statute that made it easier to commit based on mental illness those

already    in   prison    than    counterpart     state    residents     not    so

imprisoned.     Id. at 110-11.

            But a state, unlike            Congress, has a general police

power, whereas the federal government's interest and responsibility

here stem from the fact that it already has custody of the

prisoner.       Volungus,   2010    WL   46968,   at   *6-7.     There    is    no

corresponding group of unimprisoned persons subject to its police

power, so with respect to the operation of section 4248, federal

prisoners and unimprisoned persons are not similarly situated. See

Plyler v. Doe, 457 U.S. 202, 216 (1982).               Thus, far from being



                                     -19-
irrational, it is inevitable that the federal government limits the

reach of section 4248 to individuals already in its custody.

           We uphold the district court's determination that the

statute   is   not   facially   unconstitutional,   conclude   that   the

district court erred in holding that the government failed to

establish that Carta met the mental condition element and remand

for it to consider whether the requisite dangerousness exists.

           It is so ordered.




                     --Concurring Opinion Follows--




                                   -20-
          LAPLANTE, District Judge, concurring. As explained in my

recent dissent in United States v. Volungus, No. 09-1596, 2010 WL

46968, at *9 (1st Cir. Jan. 8, 2010), I have serious concerns about

whether the Walsh Act is necessary and proper to the exercise of

Congress’s enumerated powers.   Since the Supreme Court has already

heard oral argument in a case that raises that very issue, see

United States v. Comstock, 551 F.3d 274 (4th Cir. 2009), cert.

granted, 129 S. Ct. 2828 (2009), I would prefer to wait for the

Supreme Court’s ruling rather than remand this case now and create

potentially unnecessary work for the district court.    Carta will

remain in federal custody either way, at least in the short term.

          Notwithstanding this preference, I concur fully in the

majority opinion because I recognize that Volungus, which upheld

the Walsh Act as a valid exercise of Congress’s authority, is now

the established law of this circuit.




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