                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 12-7852


UNITED STATES OF AMERICA,

                  Appellee,

          v.

DANIEL H. KING,

                  Appellant.


Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Louise W. Flanagan,
District Judge. (5:10-hc-02009-FL-JG)


Submitted:   August 13, 2013             Decided:    September 16, 2013


Before NIEMEYER, GREGORY, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Joseph L. Bell, Jr., BATTS, BATTS & BELL, LLP, Rocky Mount,
North Carolina, for Appellant. Thomas G. Walker, United States
Attorney, R.A. Renfer, Jr., Assistant United States Attorney,
Edward D. Gray, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

        The district court ordered Appellant Daniel H. King civilly

committed as a sexually dangerous person under the Adam Walsh

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

L. No. 109-248, § 302, 120 Stat. 587, 619-22 (codified in 18

U.S.C. §§ 4241, 4247, and 4248).              King appealed, now arguing the

district court erred both in referring his case to a magistrate

judge    and    in   certifying   him    as   a   sexually    dangerous   person.

Finding no error, we affirm the district court’s decision.


                                         I.

      The      record   reveals   that   King’s     history    is   replete   with

instances of sexual misconduct and violence towards women.

                           King’s criminal history

  •     In 1971, at approximately age twelve, King began exposing
        his   penis  to   other  children.   His  parents  sought
        professional help for this behavior, but were told King
        would outgrow the problem.

  •     On April 18, 1974, at the age of fifteen, King was charged
        with two counts of indecent exposure after exposing his
        penis to two girls age seven and eight, asking them if they
        wanted to touch it.   King pled guilty to both counts.   He
        was given one year of juvenile probation.

  •   On October 10, 1975, when he was seventeen, King was
      charged and pled guilty to the offense of “seize,
      transport, and detain with intent to defile the victim’s
      person.”  King approached a female stranger, age nineteen,
      and after a brief conversation, grabbed her with one hand
      and placed a knife at her neck with the other.   King then
      forced her into the backseat of a car driven by another
      male, and they drove away.     King held the young woman
      around her throat and fondled her breast.    He was given

                                         2
    indeterminate probation not to last past his twenty-first
    birthday for the offense.

•   On April 7, 1978, at the age of nineteen, King was charged
    with two counts of attempted abduction.    King reported he
    attempted to abduct two women on separate occasions on the
    same day. The first count was nolle prossed, and King pled
    guilty to the second count. He was sentenced to ten years’
    imprisonment with five years suspended plus five years
    probation.    On February 3, 1984, King’s probation was
    revoked due to his commission of a crime in late 1983 (see
    below), and he received a five-year term of imprisonment.
    He was paroled from imprisonment on November 14, 1985, and
    began serving the sentence for the 1983 offense.

•   On November 23, 1983, at the age of twenty-five and while
    on probation, King was charged with simple assault, two
    counts of carrying a dangerous weapon-felony, and assault
    with intent to kidnap while armed. In this incident, King
    approached a female stranger and asked her to walk him to
    his car because he was drunk. The woman declined, and King
    told her not to scream or he would kill her.        He then
    attempted to push her into her vehicle, but the woman
    kicked and screamed, causing King to flee.    One count of
    carrying a dangerous weapon-felony was dismissed, and King
    pled guilty to the other count and to simple assault. King
    received two-to-eight years on the carrying a dangerous
    weapon count and a one year consecutive term for the simple
    assault. He was paroled on September 3, 1987.

•   Finally, On February 19, 1988, at age twenty-nine and while
    on parole, King was charged in the District of Columbia
    with assault with intent to rob while armed and armed
    kidnapping.  King   grabbed  a   woman  around   her  neck,
    threatened her with a knife and instructed her not to
    scream, led her down the street, and asked her if she had
    any money. King then tried to force her into her vehicle.
    King was thwarted when a passerby diverted his attention,
    and the victim was able to break his hold and run away.
    The assault with attempt to rob charge was dismissed, and
    King pled guilty to armed kidnapping.    King was sentenced
    to twelve to thirty-six years for this offense.        King
    surrendered to the custody of the Bureau of Prisons (BOP)
    and was serving time for this offense before he was civilly
    committed.



                              3
              King’s misconduct while in BOP custody

      King’s misconduct did not dissipate while incarcerated.

  •   On April 9, 1993, King was in a one-on-one therapy session
      with   a  female  BOP  psychologist.     King   asked  the
      psychologist to turn off the audio recorder, and said “I
      want you to touch my penis.”  The BOP sanctioned King for
      this incident.

  •   On October 18, 2011, on    the morning of his § 4248 hearing,
      King exposed himself to     female detainees in a cell across
      the hall from his at       the Wakefield County Jail.     King
      purposefully masturbated   in view of the female detainees.

  •   While in the custody of the BOP King was also sanctioned
      for the following: threatening bodily harm to a female
      staff psychologist (1995); possessing a dangerous weapon
      (1998); wrongful use/possession of drugs and alcohol (1998,
      2000, 2004); possessing intoxicants-homemade alcohol (1999,
      2006); disruptive conduct while high (1999); refusing to
      take an alcohol test (1999); use of drugs/drug items
      (2000); attempted escape (2000); threatening bodily harm
      (2000); use of drugs (2003, 2005, 2009); possessing
      intoxicants and use of drugs (2007); and refusing an
      order/being insolent to staff member (2010).

  •   Also while in custody, BOP staff confiscated magazines from
      King with sexually suggestive pictures of women, and
      intercepted an email from him in which he said he planned
      on purchasing a pay-as-you-go cellphone upon release so
      authorities could not track him.

                  King’s Section 4248 proceedings

      King was scheduled for release on January 20, 2010.        One

day prior to his scheduled release date, the government filed a

certificate with the district court certifying that King is a

sexually dangerous person as defined by the Adam Walsh Act, see

18 U.S.C. § 4248(a), staying King’s release.      On June 25, 2010,

King filed a motion requesting a commitment hearing.       Discovery


                                   4
commenced, with an end date of September 15, 2011, and a hearing

date set for October 17, 2011 before a magistrate judge.                             On

September    16,    2011,    King     moved   the     court    to   reconsider      its

decision to refer his case to a magistrate judge, which was

denied on October 11, 2011.               The commitment hearing was held

October 17-19, and continued on November 16.                        At the hearing,

the magistrate judge accepted into evidence various documents

submitted     by     both     parties,     including        forensic      evaluation

reports, medical records, court records, police reports, and BOP

records.      The    court     also     heard    testimony      from     two   expert

psychologists on behalf of the government – Dr. Gary Zinik and

Dr. Dawn Graney, and one expert psychiatrist on behalf of King –

Dr. Fabian Selah.

                             Dr. Zinik’s Testimony

     Dr.    Zinik     provided      expert      testimony      on   behalf     of   the

government, opining that King met the requirements for civil

commitment.        Dr. Zinik formed his opinion after interviewing

King and evaluating King’s criminal history, medical history,

social      history,        substance     abuse        history,        institutional

adjustment,    and     other   records.         Dr.    Zinik    opined    that      King

suffers from Paraphilia 1 Not Otherwise Specified-forced sex with


     1
       “Paraphilia” is defined in the Diagnostic and Statistical
Manual of Mental Disorders, Fourth Edition, Text Revision (“DSM-
IV-TR”) as “recurrent, intense sexually arousing fantasies,
(Continued)
                                          5
nonconsenting           females          (“Paraphilia                NOS-nonconsent”);

Exhibitionism; Polysubstance Abuse; and Antisocial Personality

Disorder.      Dr. Zinik expressed that Paraphilia NOS is a serious

mental illness under the Adam Walsh Act.                          Dr. Zinik based his

diagnosis on King’s record of rapid reoffending upon release

from confinement, the sexual motivation behind King’s crimes,

evidence that King planned his attacks, King’s admissions of his

continued      sexual   urges,     and   King’s          repeated    misconduct       while

incarcerated.

        Dr. Zinik noted that during an interview with the Parole

Commission      in   1997,     King    said       he     needed    treatment     for   his

“repetitive pattern of behavior that has been unacceptable in

society.”       Further, in a 2009 letter addressed to BOP staff,

King stated he has not developed the ability to control himself.

There    was    also    evidence       that       King    stated     verbally    to    BOP

psychology      staff    that     he     has       committed        undetected    sexual

offenses in the past, that the sex treatment he has received has

been ineffective, that he has not received adequate tools to

control     himself,     and     that     he       would     sexually     reoffend      if

released.      All of this, in addition to King exposing himself on



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 six months.”



                                              6
the day of his § 4248 hearing, was “very compelling evidence”

that King had a “total breakdown in sexual impulse control.”

       When deciding whether King would have serious difficulty in

refraining from sexually violent conduct if released, Dr. Zinik

did both a clinical analysis and a statistical analysis using

three    actuarial        risk    assessment         tools    that    have       a    moderate

degree of accuracy.             On all three measures King ranked as having

a “high” risk of reoffending.                       Dr. Zinik also found that a

number of dynamic risk factors, such as an intimacy deficit,

lack     of     sexual     self-regulation,           lack     of     cooperation            with

supervision, and a lack of general self-regulation, increased

King’s likelihood of reoffending.

       Finally, Dr. Zinik looked at the factors that weigh against

King    reoffending        if    released,         including:       (1)    King       had     not

sexually       reoffended       while   in    BOP    custody;       (2)    King       only    had

fifteen years left in his “time at risk,” and once outside the

risk     period     his      motivation       and     ability        to    reoffend          will

significantly        decrease;      and      (3)    his   advanced        age.        However,

despite considering these “protective” factors, Dr. Zinik still

formed        his   expert       opinion      that     King     would       have       serious

difficulty refraining from sexually violent conduct if released,

and    therefore     weighing       everything        together,       found          that    King

qualifies as a sexually dangerous person.



                                              7
                                 Dr. Graney’s Testimony

       Dr. Graney is employed by the BOP and testified on behalf

of the government.              She too opined that King meets the criteria

for civil commitment under the Adam Walsh Act, and diagnosed

King    as   suffering      from:         (1)       Paraphilia      NOS-nonconsent;        (2)

Exhibitionism;        (3)       Alcohol    Abuse;      (4)    Opiate     Abuse;     and    (5)

Antisocial         Personality      Disorder.           Her     report      reached    these

conclusions          by     detailing        King’s          developmental          history,

relationship history, education history, military/work history,

substance       abuse     history,        nonsexual         criminal   history,       sexual

criminal history, psychosexual history, mental health history,

medical history, her diagnostic treatment impressions, and by

using actuarial instruments.                Based on all of this information,

Dr.    Graney      also   found     that    King      would     have   a    high    risk    of

reoffending if released.

                                 Dr. Saleh’s Testimony

       Dr. Saleh testified on King’s behalf, opining that King

does not meet the criteria for civil commitment.                            As part of his

evaluation, Dr. Saleh interviewed King, during which King in

toto    retracted         his     statements         that     he    would    reoffend      if

released.          King    told     Dr.    Saleh      that     he   simply     made    those

statements in order to remain confined and to receive continued

treatment.         As such, Dr. Saleh found that King had a history of

“acting      out    and    feigning       psychiatric         symptoms      for    secondary

                                                8
gain.”      Consistent with Dr. Zinik and Dr. Graney, Dr. Saleh

diagnosed        King        as     suffering          from        Antisocial     Personality

disorder, but did not find King to suffer from any other mental

illness.         Dr.        Saleh       opined    King       does     not   suffer       from     a

paraphilia because outside of King’s behavior in the mid-1970s,

evidence of paraphilia is “inexistent.”                               Dr. Saleh testified

that the incident of King exposing himself the day of his § 4248

hearing does not change his opinion.                           Finally, in his report,

Dr. Saleh noted that he did not believe King to have committed a

sexually violent act necessary for commitment.                                Dr. Saleh did

not provide an opinion as to whether King would have serious

difficulty refraining from sexually violent conduct if released,

nor   did   he    use       any     actuarial         risk    assessment        tools     in    his

evaluation.

          Magistrate’s Recommendation and District Court Decision

      Based      on     all       the    evidence,      the        magistrate     judge     found

King’s statements regarding his impulse control to be credible,

despite     characterizing               King     as    a     “habitual         liar.”          The

magistrate judge reached this conclusion based on King self-

reporting     his        impulse         to      engage       in     nonconsensual        sexual

encounters       on    at     least      ten    separate      occasions      over     the      past

three     decades.            King’s       own    behavior          over    the   time-period

corroborated          his     finding.           Therefore,         when    turning      to     the

elements necessary for civil commitment, the magistrate judge

                                                  9
first    found     that     King’s    1975     conviction           for   the    offense      of

seize, transport, and detain with intent to defile the victim’s

person satisfied the first element – whether King had previously

engaged in sexually violent conduct.                      As to whether King had a

serious mental illness, the magistrate judge found persuasive

the   testimony       of    Drs.     Zinik    and       Graney,      finding      that      King

suffered       from   a     “paraphilic       disorder          characterized         by     his

impulse       to   engage     in     nonconsensual         sexual         encounters        with

women,” yet refused to attach the formal diagnosis of Paraphilia

NOS-nonconsent to King’s mental illness.                           The magistrate judge

further       found   that    the     disorder       is    serious        because     of     the

substantial disruption it caused in King’s life.                                And finally,

the   magistrate        judge      found     there      was     clear      and    convincing

evidence that King would have serious difficulty refraining from

sexually      violent      conduct    if     released,        as    evinced      by   his    own

statements.        As further support, the magistrate judge noted that

King’s paraphilic disorder impacted impulse control, as shown by

his conduct both before his surrender to BOP custody and during,

and     the    actuarial      measures        indicating           King’s       future      risk

(although      the    magistrate      judge       did     not      give   the    assessments

“great weight”).            Therefore, the magistrate judge recommended

that King met the criteria for civil commitment under the Adam

Walsh Act.



                                             10
      King entered objections to the magistrate judge’s report

and   recommendations,          arguing   the    magistrate       judge     erred    in

finding    his    statements       regarding     his    sexual       impulse   control

credible,   and       that   the   magistrate        judge   erred    in   finding    he

satisfied   the       elements     necessary     for    civil    commitment.         The

district court reviewed the disputed issues de novo and adopted

the    magistrate            judge’s      unchallenged           findings.         After

independently reviewing the contested issues, the district court

found the magistrate judge’s reasoning persuasive and adopted

the magistrate judge’s conclusion — that King qualifies as a

sexually    dangerous        person    under     the     Adam     Walsh     Act,     and

therefore meets the criteria for civil commitment.

      King timely appealed.



                                          II.

      We review the district court’s factual findings for clear

error and legal decisions de novo.                   United States v. Hall, 664

F.3d 456, 462 (4th Cir. 2012).

                                          A.

      Before     we    decide      whether     the    district    court     erred    in

finding King to be sexually dangerous under the Adam Walsh Act,

we address King’s objection to the district court’s referral of

this matter to a magistrate judge for an evidentiary hearing.

King has conceded both before the district court and this Court

                                          11
that the district court had the authority to refer this matter

to a magistrate judge.           See J.A. 29; Appellant’s Br. 16; see

also 28 U.S.C. § 636(b)(1)(B) (conferring power to magistrate

judges to conduct evidentiary hearings in civil matters); Gomez

v. United States, 490 U.S. 858, 872 (1989) (stating magistrate

judges have been granted authority “to conduct trials of civil

matters”).       Yet   despite    this    concession,   King   argues   that

because the Adam Walsh Act makes no mention of a magistrate

judge’s role in § 4248 commitment proceedings, such referral was

improper. 2

     We recently held that civil commitment proceedings under

§ 4248 are civil and not criminal in nature.            See United States

v. Timms, 664 F.3d 436 (4th Cir.), cert. denied, 133 S. Ct. 189

(2012); see also United States v. Comstock, 627 F.3d 513, 520-21

(4th Cir. 2010).       As a civil proceeding, therefore, the district

court had the authority pursuant to the Federal Magistrates Act

to refer this case to a magistrate judge for an evidentiary

hearing.      See 28 U.S.C. § 636(b)(1)(B).      That the Adam Walsh Act

     2
       King also argues that referral of § 4248 commitment
proceedings to a magistrate judge does not further the purposes
of the Federal Magistrates Act.      We disagree.   The district
court referred this matter to a magistrate judge to ensure that
King would have a speedy hearing.       At the time there were
considerable delays taking place in the district with respect to
§ 4248 hearings. This is the type of supporting role envisioned
for magistrate judges by the Federal Magistrates Act.        See
Peretz v. United States, 501 U.S. 923, 929 (1991).



                                     12
does not specifically mention magistrate judges does not limit

the sweep of the Federal Magistrates Act.                 Moreover, the record

indicates the district court reviewed de novo all objections

made to the magistrate’s report and recommendations and scoured

the record before reaching its decision.                Thus, we find no error

in the referral of this matter to a magistrate judge.

                                        B.

       Next,   King   challenges      the    district    court’s   determination

that he is sexually dangerous as defined by the Adam Walsh Act.

In order to be committed as a sexually dangerous person the

government must prove by clear and convincing evidence that:

(1) King engaged in or attempted to engage in sexually violent

conduct or child molestation; (2) King suffers from a serious

mental illness, abnormality, or disorder; and (3) because of the

serious   mental      illness,   abnormality,      or    disorder,   King   would

have   serious    difficulty     in    refraining       from   sexually   violent

conduct or child molestation if released.                18 U.S.C. §§ 4248(a),

(d); see United States v. Francis, 686 F.3d 265, 274 (4th Cir.

2012).

                                        1.

               King engaged in sexually violent conduct

       King does not dispute that he has previously engaged in

sexually violent conduct.             Indeed, more than one incident in

King’s criminal history satisfies this element.

                                        13
                                         2.

              King suffers from a serious mental illness

       King does dispute, however, that the government proved by

clear and convincing evidence that he suffers from a serious

mental illness requiring commitment.                 Our review of the record

proves King’s argument unavailing.

       Two expert witnesses, Drs. Zinik and Graney, opined King

suffered     from     a    paraphilic    disorder,        characterized       by    his

intense desire to engage in nonconsensual sex with women.                           The

experts     reached       this   conclusion       based    on   King’s       extensive

criminal    history,       his   repeated     misconduct    while   incarcerated,

and his repeated assertions about his wanton sexual desires and

inability     to    control      them.      Dr.    Selah    reached      a   contrary

conclusion.        Dr. Selah discounted King’s self-reporting, finding

that he is a pathologic liar.                 Without King’s statements, Dr.

Selah found that there was little evidence that King suffered

from   a   paraphilia       –    specifically     citing    that    King      had   not

engaged in any sexually violent acts while incarcerated.

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

of their opinions,” we are “especially reluctant to set aside a

finding based on the trial court’s evaluation of conflicting

expert testimony.”           Hall, 664 F.3d at 462 (citation omitted).

It was within the province of the district court to determine

which expert opinion to credit.                There is nothing to indicate

                                         14
that Drs. Zinik and Graney’s testimony is inconsistent with the

evidence      presented.         And   expert   opinion   is    critical    to

determining whether King suffers from a mental illness.                    See

Addington v. Texas, 441 U.S. 418, 429 (1979).                  Moreover, the

district court specifically found King’s self-reporting to be

credible, and we are required to give “due regard” to a trial

court’s credibility determination of a witness.                 See Fed. R.

Civ. P. 52(a)(6); Anderson v. City of Bessemer City, N.C., 470

U.S. 564, 573 (1985).        The fact that Dr. Selah’s expert opinion

rested on a finding that King’s self-reporting was not credible

runs       contrary   to   the    magistrate    judge’s   conclusion,      and

therefore undermines its utility. 3             And it is not dispositive

that King has not committed an overt sexually violent act while

incarcerated, as paraphilia is characterized by both fantasies

and urges, not just physical behavior.

       Essentially, whether King suffers from a “serious mental

illness, abnormality or disorder” under the Adam Walsh Act is a

question of fact that we will only overturn for clear error.


       3
       We also find it curious that Dr. Selah states there is no
record of King committing a sexually violent act in the past,
even though King himself is willing to concede this point.    We
have clearly stated that it is error for a district court to
rely upon the testimony of an expert who “largely ignored all
contradictory evidence” and whose “analysis was internally
inconsistent.” United States v. Wooden, 693 F.3d 440, 455 (4th
Cir. 2012).



                                        15
U.S. v. Hill, 649 F.3d 258, 262 (4th Cir. 2011).                            And “[w]here

there     are     two        permissible       views      of     the     evidence,        the

factfinder’s choice between them cannot be clearly erroneous.”

Anderson, 470 U.S. at 574.                 Because there is no evidence that

Drs.    Zinik    and    Graney’s       testimony       was     clinically    unsound       or

unsupported by fact or science, we find that their opinions,

with support of King’s voluminous record, establishes by clear

and convincing evidence that King suffered from a paraphilia.

                                              3.

            King would have serious difficulty refraining

       Finally,       King    argues    the    government        failed    to     prove    by

clear     and    convincing       evidence         that   he     would     have    serious

difficulty       in     refraining      from       sexually      violent     conduct       if

released.       This argument runs contrary to the record.

       The serious difficulty element “refers to the degree of the

person’s    ‘volitional         impairment,’        which      impacts     the     person’s

ability    to    refrain       from    acting      upon   his    deviant     interests.”

Hall, 664 F.3d at 463 (citing Kansas v. Hendricks, 521 U.S. 346,

358 (1997)).          The fact that the district court found credible

King’s repeated assertions he would have difficulty refraining

from sexually violent conduct is evidence enough.                                 Moreover,

both Dr. Zinik and Dr. Graney testified it was their expert

belief that King would have serious difficulty refraining.                                And

their expert testimony is supported by King’s conduct, as he has

                                              16
“repeated involvement in sexually-motivated offense behaviors,”

and has a “habit in engaging in offenses for which he is likely

to    get   caught.”     In    addition,    King    presently   refuses     to

acknowledge he has a sexual problem that will require effort to

keep in check should he be released.          This is a likely indicator

that King will not be amenable to future treatment.                 And the

actuarial measures all indicate King has an elevated risk of

reoffending.      With all this considered, even in light of the

paucity of King’s overt sexually violent conduct while in BOP

custody, the evidence shows King will have serious difficulty in

refraining from sexually violent conduct if released.



                                   III.

      Ultimately, we will not reverse unless “we are left with

the   definite    and   firm   conviction    that    a   mistake   has    been

committed.”      United States v. Caporale, 701 F.3d 128, 135 (4th

Cir. 2012) (internal citations and quotation marks omitted).                We

have no such conviction.       We dispense with oral argument because

the facts and legal contentions are adequately presented in the

materials before the court and argument would not aid in the

decisional process.      The district court’s judgment is affirmed.



                                                                    AFFIRMED




                                    17
