                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 12-6838


UNITED STATES OF AMERICA,

                Petitioner – Appellee,

          v.

DAVID ARLON SIMPSON,

                Respondent - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (5:09-hc-02075-BR-JG)


Submitted:   June 24, 2013                    Decided:   July 5, 2013


Before KING, AGEE, and WYNN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Eric J. Brignac, Research and
Writing Specialist, Raleigh, North Carolina, for Appellant.
Thomas G. Walker, United States Attorney, Michael G. James,
Jennifer May-Parker, Assistant United States Attorneys, Raleigh,
North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            This     matter      arises           under    the     Adam      Walsh     Child

Protection and Safety Act, 18 U.S.C.A. §§ 4247-4248 (West 2000 &

Supp.   2011)     (the   Walsh   Act).            The     Walsh   Act     “provides     that

individuals in the custody of the Bureau of Prisons (BOP) who

are    sexually    dangerous      may     be       committed       civilly     after    the

expiration of their federal prison sentences.”                          United States v.

Francis, 686 F.3d 265, 268 (4th Cir. 2012).                              Here, David A.

Simpson appeals the district court’s order, following a hearing,

committing him to the custody and care of the Attorney General

pursuant to § 4248.        We affirm.

                                              I

            Simpson first claims that § 4248 violates the Equal

Protection Clause by limiting its application to prisoners and

that the statute also constitutes cruel and unusual criminal

punishment.        He    acknowledges,         however,         that   our   decision     in

United States v. Timms, 664 F.3d 436 (4th Cir.), cert. denied,

133 S. Ct. 189 (2012), forecloses this argument.                             In Timms, we

held     that     § 4248      did       not        deprive        “Timms      and      other

similarly-situated         individuals             in     BOP     custody      of      equal

protection of the laws,” id. at 449, and that § 4248 is civil—

not criminal—in nature, id. at 456.                        We accordingly conclude

that Simpson’s claim lacks merit.



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                                       II

            Civil    commitment   under      the   Walsh   Act    is    authorized

only if the Government satisfies a three-pronged test.                       Under

this test, the Government must establish by clear and convincing

evidence that the individual:

     (1) previously engaged or attempted to engage in
     sexually violent conduct or child molestation (the
     prior conduct prong); (2) currently suffers from a
     serious mental illness, abnormality, or disorder (the
     serious mental illness prong); and (3) as a result of
     that mental condition, the individual would have
     serious difficulty in refraining from sexually violent
     conduct   or  child   molestation  if   released  (the
     volitional conduct prong).

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

(internal     quotation        marks        omitted);      see         18   U.S.C.

§ 4247(a)(5)-(6).        “If the [G]overnment fails to meet its burden

on any of the three prongs, an individual may not be committed.”

Springer, 715 F.3d at 538.

            In this appeal, Simpson challenges only the district

court’s finding that the Government met its burden with respect

to the volitional conduct prong.             In particular, Simpson points

to his low scores on static actuarial tests designed to measure

recidivism.         In   its   commitment     order,    the      district   court

acknowledged the low scores but gave them less weight than that

afforded both Simpson’s past and recent conduct and the entirety

of expert witness testimony.            We review the district court’s




                                       3
factual findings for clear error and its legal conclusions de

novo.    Springer, 715 F.3d at 545.

            With respect to the actuarial tests, we have observed

that such models:

       only gauge a risk of recidivism based upon the
       statistics of the particular group of sex offenders
       selected for comparison. . . . Knowing the recidivism
       rate of a particular group does not mean that the
       individual under consideration poses the same chance
       of recidivism in the same time frame; his risk could
       be higher or lower than that of the group based upon
       the   unique  circumstances    of   his case.   .  .  .
       Accordingly,   experts   using    these risk-assessment
       models also consider dynamic factors such as the age
       of the particular offender, his participation in
       treatment, his compliance with such treatment, his
       history of reoffending after treatment, and his
       commitment to controlling his deviant behavior.

United    States   v.   Wooden,   693   F.3d    440,    448   (4th    Cir.   2012)

(internal quotation marks, citations and alterations omitted).

            In concluding that the Government had met its burden

with     respect   to   the   volitional       prong,   the    district      court

credited the opinions of Dr. Demby and Dr. Arnold, who agreed

that despite low actuarial scores, Simpson would have serious

difficulty in refraining from child molestation.                     Among other

things, Dr. Demby and Dr. Arnold pointed to Simpson’s history of

child     molestation    dating   at    least    from    1976,       his   abusing

children while undergoing court-ordered sex offender treatment,

his attitude condoning sexual activity with children, and his

relatively recent conduct reflecting ongoing preoccupation with


                                        4
pedophilia.   We discern no error in the district court’s finding

that the Government established the volitional prong by clear

and convincing evidence.

                               III

          We accordingly affirm.     We dispense with oral argument

because the facts and legal contentions are adequately presented

in the material before the court and argument would not aid the

decisional process.



                                                           AFFIRMED




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