                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 12-6831


UNITED STATES OF AMERICA,

                Petitioner - Appellee,

           v.

CARLOS OFARRIT-FIGUEROA,

                Respondent - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Terrence W. Boyle,
District Judge. (5:10-hc-02022-BO)


Argued:   May 17, 2013                    Decided:   July 17, 2013


Before KEENAN and FLOYD, Circuit Judges, and Henry E. HUDSON,
United States District Judge for the Eastern District of
Virginia, sitting by designation.


Affirmed by unpublished per curiam opinion.


ARGUED: Eric Joseph Brignac, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Raleigh, North Carolina, for Appellant.        Michael
Gordon James, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh,
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, Jennifer P. May-Parker, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

     Carlos       Ofarrit-Figueroa      (“Ofarrit-Figueroa”)             appeals     his

civil commitment as a sexually dangerous person under the Adam

Walsh Child Protection and Safety Act of 2006 (“the Act”).                           18

U.S.C. § 4248.          Following an evidentiary hearing, the district

court   found     that    Ofarrit-Figueroa        had   previously       engaged,     or

attempted    to       engage,   in   sexually       violent      conduct;    that    he

suffered     from        paraphilia     not        otherwise       specified        with

exhibitionist features, a serious mental illness, abnormality or

disorder;       and      that   Ofarrit-Figueroa           would     have      serious

difficulty      in     refraining    from       engaging    in   sexually     violent

conduct as a result of a serious mental illness, abnormality or

disorder.     The district court committed Ofarrit-Figueroa to the

custody of the Attorney General under 18 U.S.C. § 4248.

     On     appeal,       Ofarrit-Figueroa         challenges      his      commitment

contending that the district court clearly erred in two of the

requisite findings under the Act.                He contends that the district

court diagnosed him with a mental disorder unsupported by the

expert opinions offered at the hearing.                    He also maintains that

the district court failed to connect its finding of substantial




                                            3
difficulty in refraining from sexually violent conduct to its

finding of a serious mental disorder. 1

      The Adam Walsh Child Protection and Safety Act of 2006, 18

U.S.C. § 4247–48 provides for the civil commitment of a sexually

dangerous    person   following     the    expiration   of    their     federal

prison sentence.      18 U.S.C. § 4248(a).       A person is deemed to be

sexually dangerous under the Act if he or she 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 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.”     18   U.S.C.   §   4247(a)(6).

Commitment under the Act requires these findings by clear and

convincing evidence.       18 U.S.C. § 4248(d).

      Ofarrit-Figueroa is presently 55 years old.             He was born in

Havana, Cuba in 1957 and migrated to the United States as part

of the Mariel boat flotilla.              (J.A. 260–61.)       Prior to his

      1
        Ofarrit-Figueroa also argues that 18 U.S.C. § 4248
violates the Equal Protection Clause of the United States
Constitution.   As Ofarrit-Figueroa acknowledges in his brief,
this Court previously rejected this challenge in United States
v. Timms, 664 F.3d 436, 456 (4th Cir. 2012).    Ofarrit-Figueroa
offers no authority or argument which would compel this Court to
revisit that decision.



                                      4
arrival in the United States, Ofarrit-Figueroa was serving a ten

year sentence for robbery in Cuba.                               (J.A. 74–75.)            Ofarrit-

Figueroa denied              sexually       deviant      behavior,        i.e.,     masturbating

openly,       during         his    confinement         in    Cuba,     because     he    had       two

girlfriends            and    was    allowed       conjugal       visits       every     30    days.

(J.A. 91–92.)

        Soon      after      his     arrival      in    Florida,        Ofarrit-Figueroa            was

taken into custody by the Immigration and Naturalization Service

and confined in various facilities, including the United States

Penitentiary           (“USP”)       in    Atlanta,          Georgia.      In     1981,       he    was

released on parole and relocated to New Jersey.

        In    1982,       while      residing      in    New     Jersey,       Ofarrit-Figueroa

sexually assaulted a woman at knifepoint and stole her purse. As

a   result        of    this       incident,       he    was     later    charged        with       and

convicted         of    robbery       in    the    first       degree,    aggravated          sexual

assault        in      the    first        degree,      possession        of    a   weapon          and

possession of a weapon for unlawful purpose.                               (J.A. 79–80, 330,

359–60, 365–66, 407.)

      However, prior to his conviction for rape and robbery in

New Jersey, Ofarrit-Figueroa was found guilty in the State of

Texas        of     armed      robbery       and       was     sentenced       to   five       years

imprisonment.                (J.A.    80–82,       330.)        Upon     completion       of       this

sentence, he was returned to the State of New Jersey to stand

trial    for        the      1982    robbery,          aggravated       sexual      assault         and

                                                   5
weapons charges.           Ofarrit-Figueroa was convicted on all four

counts and sentenced to a total of 18 years imprisonment.                      While

housed in the New Jersey correctional system, Ofarrit-Figueroa

routinely masturbated in front of female correctional officers.

At the evidentiary hearing in the immediate civil commitment

proceeding, Ofarrit-Figueroa testified that he did this because

he wanted the female officers to fall in love with him.                        (J.A.

81–82.)

      In 1994, he was paroled into the custody of the Immigration

and Naturalization Service.             After being housed in a number of

local facilities, he was transferred to the Federal Correctional

Center (“FCC”) in Terre Haute, Indiana, where he was assigned to

work in the food service area.                 On March 22, 2000, Ofarrit-

Figueroa struck, bit, kissed and sexually assaulted his female

supervisor at that institution.                When she attempted to summon

help, Ofarrit-Figueroa knocked her radio from her hand.                        (J.A.

82–86, 330–31.)

     As a result of the incident at FCC Terre Haute, Ofarrit-

Figueroa   was     convicted    of   sexually     assaulting      and    inflicting

bodily injury on an employee of the Federal Bureau of Prisons

(“BOP”).      He     was    sentenced    to    ten   years   imprisonment          and

designated to the USP in Marion, Illinois.                (J.A. 330-31, 358.)

At   USP   Marion,    he    continued     to    expose    himself       and   openly

masturbate    in     the    presence     of    female    staff,    often      as    an

                                         6
expression of his anger.                    (J.A. 87, 89, 100.)         In 2005, at his

request, he was placed in the Sex Offender Management Program.

However, because of his continuous sexual misbehavior, he was

placed in a more secure special housing unit.                          (J.A. 343.)       This

was largely a result of his continued aggressive masturbation in

the         presence     of     female        correctional       officers         he     found

attractive.

        In     the   opinion     of     a    staff     psychologist     at    USP      Marion,

Ofarrit-Figueroa was deemed inappropriate for participation in a

more         intensive        hypersexuality         management        program.           The

psychologist         concluded     that       Ofarrit-Figueroa         failed     to    accept

responsibility for his actions, lacked motivation to change and

had a defiant attitude toward disciplinary sanctions. 2                                  (J.A.

106.)

       Ofarrit-Figueroa           was       eventually     transferred       to   the   BOP’s

most        secure     facility,      the     FCC    in    Florence,     Colorado.         He

remained at that institution from 2006 to February 2010. 3                               After

a   precertification            evaluation       for      commitment    as    a   seriously

dangerous person under 18 U.S.C. § 4248, he was placed in a

        2
       Ofarrit-Figueroa admitted refusing to obey orders                                  and
throwing feces at correctional officers. (J.A. 99–100.)
        3
       Ofarrit-Figueroa was placed in secure and isolated status
from 2000 through 2010, following his conviction for sexually
assaulting a female officer. During that period, he had limited
contact with BOP personnel or other inmates.



                                                7
secure section of the Federal Correctional Institute (“FCI”) in

Butner, North Carolina (J.A. 337, 345.)                       At FCI Butner, Ofarrit-

Figueroa was evaluated by a certification review board, composed

of a number of mental health professionals.

      During      intake     processing         at     FCI   Butner,      Ofarrit-Figueroa

was initially evaluated by Dr. Andres Hernandez, the clinical

coordinator       of   the   commitment          and     treatment     program        at    that

facility.          Ofarrit-Figueroa            told     Dr.     Hernandez        that       women

enjoyed having sexual intercourse with him and that he could not

resist exposing himself while in prison.                        He further revealed to

the   psychologist       that      he    believed        that   women      who    worked       in

prisons enjoyed observing inmates openly masturbating in their

presence.        (J.A. 109–11.)

      The next mental health professional to come into contact

with Ofarrit-Figueroa was Dr. Melanie Malterer, a sex offender

program     psychologist        at      FCI    Butner.         On   May    28,    2010,      Dr.

Malterer observed Ofarrit-Figueroa exercising outside her window

in    a    prohibited      area.          He     was     staring     directly         at    her,

shirtless,       and   appeared         to     have    an    erection.        (J.A.         118.)

Approximately one week later, an inmate reported to Dr. Malterer

that Ofarrit-Figueroa was masturbating as she walked down the

hallway.     (J.A. 121–23.)

      As     a    result,     Ofarrit-Figueroa                was   placed       in        inmate

segregation.        This restricted confinement was extended after Dr.

                                                8
Malterer       learned    from    several       inmates    that    Ofarrit-Figueroa

referred to her as his girl and that she enjoyed watching him

exercise outside her office.                During his confinement in this

annex    area,    Dr.    Malterer,      while    conducting       an   evaluation      of

another     inmate,       observed      Ofarrit-Figueroa          place    his    penis

through the cell door food tray and masturbate as he stared at

her through a mirror he held in his hand.                         When Dr. Malterer

directed him to stop masturbating, Ofarrit-Figueroa refused and

exhorted that “now you have a reason to lock me up, bitch.”

(J.A. 123.)

        As part of the certification evaluation process, Ofarrit-

Figueroa was also evaluated by Dr. Dawn Graney, a sex offender

forensic psychologist employed by the BOP.                   Dr. Graney testified

that     she    diagnosed       Ofarrit-Figueroa          with    exhibitionism,        a

paraphilia whereby individuals have recurrent and strong urges

to expose themselves to nonconsenting strangers.                          Dr. Graney’s

clinical impressions also included a diagnosis of personality

disorder/antisocial personality disorder.                    She elaborated that

antisocial personality disorder is a pattern of serious rule

violations or disregard for the rights or welfare of others.

She    added    that     both    are   mental    disorders       identified      in   the

American       Psychiatric      Association’s      Diagnostic      and     Statistical

Manual of Mental Disorders, Fourth Edition, Text Revision (the

“DSM”).    (J.A. 55–56, 347, 349.)

                                            9
       Dr. Graney concluded that Ofarrit-Figueroa masturbated in

front      of   nonconsenting       individuals          as      a   means     of    initiating

sexual activity with women and that he also used this behavior

to retaliate against or exhibit anger toward women.                                   (J.A. 56–

57.)       In her view, unlike the typical exhibitionist, Ofarrit-

Figueroa could be very intimidating and threatening.                                 (J.A. 57.)

As    an    example,       she    described    him          as    “engaging      in    stalking

behaviors or leering at female staff.”                           (J.A. 61.) It was also

her    opinion       that    if    faced    with        a    woman       who    rejected    his

advances,       he     would      engage      in    aggressive            and       threatening

activity.         (J.A. 60–61.)           Based on psychological testing, Dr.

Graney     also    testified       that    Ofarrit-Figueroa              lacked      volitional

control, posed a high risk of sexually reoffending and would

have    serious      difficulty       in    refraining            from    sexually      violent

conduct if he were to be released.                  (J.A. 63–64.)

       The United States also called Dr. Hy Malinek, a clinical

and     forensic      psychologist         with     offices          in      Beverly     Hills,

California.          Dr.    Malinek    initially            diagnosed      Ofarrit-Figueroa

with    exhibitionism        and    antisocial       personality             disorder.       Dr.

Malinek, however, on further evaluation, revised his findings in

a    second     supplementary        report,       to       paraphilia         not    otherwise

specified (“NOS”) and antisocial personality disorder.                                     (J.A.

131.)      Dr. Malinek explained that the later diagnosis was more

appropriate        because        Ofarrit-Figueroa               possessed      elements      of

                                             10
several serious disorders.              He described Ofarrit-Figueroa as an

atypical exhibitionist that did not fit squarely within this DSM

diagnostic     category       because   he      desired        to    have      sex    with    his

victims.      (J.A. 131–33.)         Dr. Malinek noted that “[h]e fixates

on people.         He has committed two sexual -– two hands on sexual

assaults.          One is on a woman at the BOP at Terre Haute in

Indiana.”      (J.A. 132.)        Dr. Malinek also observed that Ofarrit-

Figueroa possessed a distorted perception that women wanted to

have sex with him and that his role is to “bring joy to the

world [with his penis] and that this is appropriate behavior,

there’s nothing wrong with this . . . .”                                 (J.A. 139.)          Dr.

Malinek added that this distorted perception “clearly amplifies

his dangerousness.”        (J.A. 139.)

     Based      upon    his     evaluation,        Dr.     Malinek         concluded         that

Ofarrit-Figueroa met the criteria for civil commitment under 18

U.S.C. § 4248.          (J.A. 130.)          In Dr. Malinek’s view, Ofarrit-

Figueroa’s     distorted        thinking     about       his    role       with      women    and

feelings      of    entitlement     when        combined        with       his       antisocial

personality disorder, make him sexually dangerous if rejected by

a woman.      (J.A. 149–53.)

     The    final      expert    witness     was     Dr.       Luis      Benjamin      Rosell,

called   by    Ofarrit-Figueroa.             Dr.     Rosell         is    a    clinical       and

forensic psychologist with offices in Mount Pleasant, Iowa.                                   Dr.

Rosell     testified     that     his    evaluation            did       not     reveal      that

                                           11
Ofarrit-Figueroa met the criteria for civil commitment under the

Adam Walsh Act.         In Dr. Rosell’s opinion, Ofarrit-Figueroa would

not have serious difficulty in refraining from sexually violent

conduct. (J.A. 181-82.)             Dr. Rosell rejected the notion that

Ofarrit-Figueroa         suffered    from        any     paraphilia,          particularly

exhibitionism.          Dr.     Rosell    identified         several        distinguishing

features about Ofarrit-Figueroa’s conduct.                      Most prominently, he

exposed himself to individuals with whom he would have recurring

contact.     Atypically, he did not engage in exposure solely for

shock   value.         Instead,     Ofarrit-Figueroa            was       motivated     by    a

desire to engage in sexual intercourse with the individuals to

whom he exposed himself.           (J.A. 183-85.)

       Dr.   Rosell      diagnosed        Ofarrit-Figueroa            with         antisocial

personality      but    cautioned        that    he    did     not    believe        that    it

existed to a degree that would inhibit him in refraining from

engaging in sexually violent conduct.                     (J.A. 182.)          Dr. Rosell

also    disagreed      that     Ofarrit-Figueroa          posed       a     high    risk     of

sexually reoffending because, in Dr. Rosell’s view, he had other

opportunities to sexually offend while incarcerated but chose

not to act on them.            (J.A. 185.)       Dr. Rosell also discounted Dr.

Malinek’s assessment that Ofarrit-Figueroa’s sexual aggression

was the product of anger.                Instead, he believed that Ofarrit-

Figueroa     exposed      himself    in     an        effort    to    gain     consensual

intercourse.           (J.A.    192-94.)         Dr.     Rosell       did    acknowledge,

                                           12
however, that a number of his diagnostic tools revealed factors

that    increased      Ofarrit-Figueroa’s             risk    of    sexual       recidivism.

(J.A. 202-04.)

       In   its    findings      of    fact        and    conclusions       of    law,       the

district court found that the United States had demonstrated by

clear    and   convincing        evidence          that   Ofarrit-Figueroa          met      the

criteria    for    commitment         under    18     U.S.C.    §   4248.         The    court

initially      noted   that   Ofarrit-Figueroa               stipulated      that       he   had

engaged in sexually violent conduct in the past, as reflected by

his criminal history.

       In   its    analysis       of    the        expert     testimony,         the     court

acknowledged      disagreement         as     to    the   appropriate        diagnosis        of

Ofarrit-Figueroa’s mental illness.                    The court also observed that

all three of the forensic psychologists agreed that Ofarrit-

Figueroa’s case was unique.                 The court attributed more weight to

the testimony and findings of Drs. Malinek and Graney than that

of Dr. Rosell.          Both Drs. Malinek and Graney concluded that

Ofarrit-Figueroa          suffered      from         a    serious     mental        illness,

abnormality       or   disorder.            However,       neither    found       that       his

aggressive tendency to expose himself indecently, particularly

when    coupled    with    his    desire       to     initiate      sexual       encounters,

placed him squarely within any diagnostic label found in the

DSM.    The court therefore concluded that the evidence supported

a finding of paraphilia NOS, which met the criteria for a mental

                                              13
disorder under the Act.        Specifically, the court credited Dr.

Malinek’s opinion, stating that:

     Mr. Ofarrit-Figueroa suffers from paraphilia NOS on
     the basis that he demonstrates paraphilic tendencies
     but does not “cleanly” meet the diagnostic criteria
     for exhibitionism. On that basis alone, the Court
     finds   that  Petitioner   has    met  its   burden   to
     demonstrate by clear and convincing evidence that Mr.
     Ofarrit-Figueroa   suffers   from    a  serious   mental
     illness, abnormality, or disorder.

(J.A. 303–04.)

     Lastly,   the   court    concluded    that   as   a   result   of   the

illness,   abnormality   or   disorder,    Ofarrit-Figueroa    would     have

serious difficulty in refraining from sexually violent conduct

or child molestation if released.         In drawing its conclusions on

this element, the court relied on the teachings of United States

v. Hall, 664 F.3d 456 (4th Cir. 2012).             In Hall, the Fourth

Circuit noted that

    the   “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.    Kansas v. Hendricks, 521
    U.S. 346, 358 (1997) . . . (noting that statutory
    requirements that couple proof of dangerousness with
    proof of a mental illness or abnormality “serve to
    limit involuntary civil confinement to those who
    suffer from a volitional impairment rendering them
    dangerous beyond their control”).

664 F.3d at 463.

     After recounting in detail the sexually aggressive conduct

exhibited by Ofarrit-Figueroa during his confinement within the


                                   14
BOP, his prior criminal history, and the findings of Dr. Malinek

and Dr. Graney, the court concluded that “Ofarrit-Figueroa has

demonstrated, even while incarcerated, a serious inability to

refrain   from   acting    upon   his    deviant   sexual       interests.     It

appears that he has found it particularly difficult to control

his behavior.” 4   (J.A. 304.)

      The two central issues raised on this appeal are whether

the district court properly anchored its finding of substantial

difficulty in refraining from sexually violent conduct to its

finding of a serious mental disorder.                  In addition, Ofarrit-

Figueroa contends that the district court erred in adopting a

mental diagnosis of Ofarrit-Figueroa unsupported by the expert

testimony.

      In cases in which the government seeks civil commitment of

a convicted sex offender under the Walsh Act, this Court reviews

the   district   court’s   findings      for   clear    error    and   its   legal

conclusions de novo.       United States v. Wooden, 693 F.3d 440, 451

(4th Cir. 2012).       Under the clear error standard, “[i]f the

district court’s account of the evidence is plausible in light

of the record viewed in its entirety, [we] may not reverse it

even though convinced that had [we] been sitting as the trier of

      4
       During his confinement, Ofarrit-Figueroa was cited for
fifty disciplinary infractions for sexually related conduct.
(J.A. 99.)



                                        15
fact, [we] would have weighed the evidence differently.”                                Id.

(quoting Anderson v. Bessemer City, 470 U.S. 564, 573-74, 105 S.

Ct. 1504, 1511 (1985)) (internal quotation marks omitted).                              When

the    district      court’s      findings       “are    based     on    determinations

regarding the credibility of witnesses, we give even greater

deference to the trial court’s findings.”                       Hall, 664 F.3d at 462

(quoting Anderson, 470 U.S. at 575, 105 S. Ct. at 1512).

       Nevertheless, “while clear-error review is deferential, it

is not toothless,” and, therefore, we may set aside a district

court’s factual findings if the 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.”                 Wooden, 693 F.3d at 452, 454, 462

(citations and internal quotation marks omitted).                           Even so, we

may    find   a    district       court’s      factual      findings      were     clearly

erroneous     only    if    we    are    “left    with     the    definite       and    firm

conviction     that    a    mistake      has   been      committed.”        Id.    at    451

(citation and internal quotation marks omitted).

       Focusing     first    on    the    diagnosis        by   the     district    court,

Ofarrit-Figueroa contends that it is unsupported by the expert

testimony.         He argues that the district court “fundamentally

misunderstood Dr. Malinek’s report and based its conclusion on

that fundamental misunderstanding.”                     (Appellant’s Reply Br. 1.)

According     to    Ofarrit-Figueroa,          the    district     court    erroneously

                                            16
concluded that Dr. Malinek’s diagnosis was paraphilia NOS, based

on his exhibition-like tendencies.           This Court disagrees with

Ofarrit-Figueroa’s characterization.

     While Dr. Malinek discussed exhibitionism in explaining his

diagnosis, Ofarrit-Figueroa points out that Dr. Malinek rejected

this diagnostic label and concluded that he fit more squarely in

the category of paraphilia NOS nonconsent.              This was predicated

on Ofarrit-Figueroa’s interest in nonconsenting partners and his

belief that indecent exposure was a vehicle intended to lure

sexual partners.     Dr. Malinek characterized his behavior as a

“fundamental courtship disturbance.”         (J.A. 302.)

     The district court prefaced its impression of the evidence

by emphasizing that all three of the forensic psychologists who

testified   described   Ofarrit-Figueroa’s        case   as   unique.      The

court further noted an apparent consensus among the experts that

Ofarrit-Figueroa     suffered    from    a    serious      mental    illness,

abnormality or disorder.        The principle disagreement distilled

to differences in diagnostic labeling.              The behavior pattern

demonstrated by Ofarrit-Figueroa was complex with manifestations

that defied placement within the established diagnostic criteria

contained in the DSM.      In the final analysis, after thoroughly

considering   the   contrary    viewpoint    of   Dr.    Rosell,    the   court




                                    17
found    Dr.   Malinek’s     diagnosis    and   reasoning   to   be   the    most

persuasive. 5

     In articulating its findings and conclusions, the district

court found the evidence to best support the opinion of Dr.

Malinek, namely that Ofarrit-Figueroa’s “incidents of indecent

exposure, boundary violations, stalking, leering, and following

a particular staff member supported this diagnosis of paraphilia

NOS.”     (J.A. 302.)        The court explained that the nomenclature

NOS was employed as a residual diagnostic category throughout

the DSM as a classification of individuals whose behavior does

not cleanly fit into specified diagnostic categories.                       (J.A.

302.)    The court further explained that the nonconsent specifier

used to describe Ofarrit-Figueroa’s paraphilia NOS was driven by

two independent bases.             First, he met some but not all of the

criteria for an exhibitionism diagnosis.               Second, and perhaps

more importantly, Dr. Malinek utilized the diagnosis specifier

nonconsent to reflect Ofarrit-Figueroa’s “anger and . . . need

to denigrate women and empower himself.”             (J.A. 303.)       Although

the court expressed some reservation in embracing the nonconsent

specifier,      it   found   the    explanation   sufficient     to   support   a



     5
       Dr. Graney’s conclusions paralleled those of Dr. Malinek
in most respects, although she preferred a slightly different
diagnostic label.



                                         18
paraphilia NOS diagnosis and to meet the criteria for mental

disorder under the Act.

        The district court further concluded that Ofarrit-Figueroa

demonstrated paraphilic tendencies but “does not ‘cleanly’ meet

the diagnostic criteria for exhibitionism.                 On that basis alone,

the     Court    finds     that    Petitioner      has     met     its       burden    to

demonstrate by clear and convincing evidence that Mr. Ofarrit-

Figueroa suffers from a serious mental illness, abnormality, or

disorder.”       (J.A. 303–04.)         This Court finds no error in the

district court’s conclusions.

      In reviewing petitions for civil commitment under the Adam

Walsh    Act,    the     science   of   psychiatry       informs       but    does    not

control the court’s ultimate legal determinations.                           Kansas v.

Crane, 534 U.S. 407, 413, 122 S. Ct. 867, 871 (2002) (citations

omitted).        Moreover, the Act contains no “language purporting

to confine the universe of qualifying mental impairments within

clinical or pedagogical parameters.”               United States v. Caporale,

701     F.3d    128,     136    (4th    Cir.    2012).       Qualifying          mental

abnormalities can encompass conditions falling outside the DSM

or other well-defined clinical standards.                This is such a case.

      Irrespective of diagnostic labeling, the evidence was clear

and   convincing       that    Ofarrit-Figueroa     suffered       from      a   serious

mental    illness,       abnormality    or     disorder.         The   diagnosis      of

paraphilia not otherwise specified standing alone is sufficient

                                         19
to satisfy the requirements of the Act.                   See United States v.

Carta, 592 F.3d 34, 40 (1st Cir. 2010). It appears from the

district court’s findings of fact and conclusions of law that

the addition of the phrase “with exhibitionist tendencies” are

words of explanation rather than qualification.                     Although each

of    the   psychologists      testifying    in    this    case    concluded       that

Ofarrit-Figueroa’s         behavior    was     inconsistent         with     typical

exhibitionism, each acknowledged that his indecent exposure was

a     critical      diagnostic     element.          Given      this     behavioral

characteristic, common to the findings of all experts, it was

certainly understandable that the court added this descriptive

language to its findings.

       The district court was clearly guided by the content of the

expert      testimony,     particularly     that   of     Dr.   Malinek      and   Dr.

Graney, but was not obligated to accept their diagnostic labels.

As the Supreme Court stressed in Kansas v. Hendricks, “[n]ot

only do psychiatrists disagree widely and frequently on what

constitutes mental illness, . . . but the Court itself has used

a variety of expressions to describe the mental condition of

those properly subject to civil confinement.”                   521 U.S. at 359,

117    S.   Ct.    at   2080   (citations    and   internal       quotation    marks

omitted).         At that stage of the analysis, the district court’s

task was to determine whether the evidence supported clearly and

convincingly        that   Ofarrit-Figueroa        suffered       from   a   serious

                                       20
mental    illness,      abnormality         or    disorder.         The       trial   court’s

legal     conclusions          and   factual        findings       were        not    clearly

erroneous.

     The       final,    and     perhaps         closer     issue,       is    whether       the

district court adequately connected its finding of substantial

difficulty in refraining from sexually violent conduct to its

diagnosis of a serious mental disorder.                       This “prong of the §

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    (citations         and     internal

quotation marks omitted).               It is a forward-looking inquiry which

attempts to predict future behavior and the extent to which an

inmate is controlled by his illness.                      United States v. Francis,

686 F.3d 265, 275 (4th Cir. 2012).                    As courts have recognized,

this is the most challenging strand of the Act criteria for

civil commitment.

     The question of whether a person is “sexually dangerous” is

“by no means an easy one,” and “there is no crystal ball that an

examining expert or court might consult to predict conclusively

whether    a    past    offender     will        recidivate.”           United      States   v.

Shields,       649    F.3d     78,   89   (1st      Cir.     2011).           “Whether       the

individual is mentally ill and dangerous either to himself or

others . . . turns on the meaning of the facts which must be

                                             21
interpreted          by     expert          psychiatrists       and   psychologists.”

Addington v. Texas, 441 U.S. 418, 429, 99 S. Ct. 1804, 1811

(1979) (emphasis in original).                  “In the end, however, it is for

the factfinder to decide among reasonable interpretations of the

evidence and determine the weight accorded to expert witnesses.”

Shields, 649 F.3d at 89 (citations and internal quotation marks

omitted).

     In        reviewing        the    district       court’s     findings      on   the

volitional impairment prong, it is important to be mindful that

“[e]valuating the credibility of experts and the value of their

opinions is a function best committed to the district courts . .

. . An appellate court should be especially reluctant to set

aside     a    finding      based      on    the    trial   court’s    evaluation     of

conflicting        expert     testimony.”           Hendricks    v.   Central   Reserve

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

     The district court discounted the opinion advanced by Dr.

Rosell        as   inconsistent        with     Ofarrit-Figueroa’s         demonstrated

pattern of behavior.              Dr. Rosell placed considerable weight on

the fact that Ofarrit-Figueroa had not engaged in any sexually

assaultive         behavior     in     the    years    immediately     preceding     his

evaluation.          However, during almost that entire time period,

Ofarrit-Figueroa          was     in    segregated      lockdown      at   a    supermax

facility isolated from other people.



                                               22
      In   concluding    that   Ofarrit-Figueroa      would    have   serious

difficulty    in   refraining    from     engaging   in   sexually    violent

conduct as a result of serious mental illness, abnormality or

disorder, the district court clearly considered and weighed the

testimony of all three psychologists, reviewed the actuarial and

psychological tests performed, and attached considerable weight

to his troubling history of sexual deviance.               In the district

court’s findings of fact and conclusions of law, as a predicate

to its conclusions under this prong, the court detailed Ofarrit-

Figueroa’s sexually violent conduct, including committing a rape

at knife point, sexually assaulting a correctional officer, and

over forty incident reports since 1999 for behavior, including

making sexual proposals or threats, engaging in sexual acts and

indecent exposure. 6     (J.A. 304-05.)

      In   concluding    that   Ofarrit-Figueroa      would    have   serious

difficulty    in   refraining    from     sexually   violent    conduct    if

released, the district court carefully analyzed the actuarial

instruments relied upon by the expert witnesses.               Collectively

viewed in light of Ofarrit-Figueroa’s individual circumstances,

the   court   found     these   actuarial    assessment    results    to   be

      6
        As the United States Supreme Court recognized in
Hendricks, “ʽprevious instances of violent behavior are an
important indicator of future violent tendencies.’” 521 U.S. at
358, 117 S. Ct. at 2080 (quoting Heller v. Doe, 509 U.S. 312,
323, 113 S. Ct. 2637 (1993)).



                                     23
consistent       with   its   conclusion     that    Ofarrit-Figueroa     posed   a

high risk of recidivism.            The precision with which the court

linked     the    volitional     component      to    a    well-defined    mental

disorder, however, was necessarily governed by the inability of

the   experts       to    diagnostically        capture       Ofarrit-Figueroa’s

aberrant behavior.

      As this Court has previously noted, the task of assessing

the likelihood of future sexually violent conduct if Ofarrit-

Figueroa     is    released,     does   not    lend       itself   to   scientific

precision.        The district court’s findings represent a logical

and reasonable interpretation of the evidence, and we cannot say

that the district court clearly erred in finding that Ofarrit-

Figueroa is sexually dangerous within the meaning of the Adam

Walsh Act.

                                                                          AFFIRMED




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