                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 12-6839


UNITED STATES OF AMERICA,

                  Petitioner - Appellee,

           v.

MICHAEL PARDEE,

                  Respondent - Appellant.


Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Louise W. Flanagan,
District Judge. (5:08-hc-02032-FL-JG)


Argued:   May 15, 2013                        Decided:   July 2, 2013


Before NIEMEYER and KEENAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


ARGUED: G. Alan DuBois, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Raleigh, North Carolina, for Appellant.   Michael Gordon James,
OFFICE OF THE UNITED STATES ATTORNEY, for Appellee.   ON BRIEF:
Thomas P. McNamara, Federal Public Defender, Eric J. Brignac,
Research and Writing Specialist, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Raleigh, North Carolina, for Appellant.     Thomas G.
Walker, United States Attorney, Jennifer May-Parker, Assistant
United States Attorney, Michael G. James, 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Unpublished opinions are not binding precedent in this circuit.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:

      After     a   hearing,    the   district           court   found      that      Michael

Pardee was a sexually dangerous person, as defined in the Adam

Walsh Act, 18 U.S.C. § 4248, and ordered that he be committed to

the custody of the Attorney General.                        On Pardee’s appeal, we

affirm.


                                              I

      In 1993, Pardee pleaded guilty in Washington State to a

charge     of   child     molestation     and       was    sentenced       to   68-months’

imprisonment.        While in state prison, Pardee completed an 18-

month sex offender treatment program and, after his release,

completed two years of outpatient treatment.

      In 2002, Pardee pleaded guilty in the Eastern District of

Washington to two counts of possession of child pornography and

was   sentenced      to    37-months’         imprisonment,         plus    three      years

supervised release.          While in prison, Pardee participated in the

sex   offender      treatment      program         for     six   months,        but    never

finished the program.          When he was released in September 2004,

he returned to outpatient treatment, which he continued for 20

months.

      On    June    16,    2006,   the    district         court     revoked       Pardee’s

supervised      release     because      he       used    cocaine    and    alcohol       and

sentenced him to 24-months’ imprisonment.                           Three days before


                                              3
Pardee was to be released, the government certified him as a

sexually dangerous person pursuant to 18 U.S.C. § 4248.

       Pardee filed a motion on June 23, 2010, to dismiss the §

4248    proceedings,    arguing       (1)   that    §        4248    created      an

unconstitutional     criminal   commitment    scheme;         (2)    that   §   4248

violated due process by imposing the clear and convincing burden

of proof on factual findings; and (3) that § 4248 violated equal

protection by limiting its application to individuals in the

custody of the Bureau of Prisons.             The district court denied

Pardee’s motion and proceeded to a commitment hearing.

       At the hearing, Pardee stipulated to the first two elements

necessary for an order of commitment -- that he had previously

engaged in sexually violent conduct or child molestation and

that he suffers from a serious mental illness, abnormality, or

disorder.     See United States v. Comstock, 627 F.3d 513, 515-16

(4th Cir. 2010).       He disputed, however, the third element --

that    he   would   have   serious    difficulty       in     refraining       from

sexually violent conduct or child molestation if released.                      See

id.

       Three experts testified at the two-day hearing -- two for

the government and one for Pardee.            The government’s experts,

Dr. Jeffrey Davis and Dr. Manuel Gutierrez, testified that they

believed that Pardee would indeed have serious difficulty in

refraining from child molestation if released.                      Dr. Gutierrez

                                       4
identified several risk factors that led him to his conclusion:

(1) Pardee’s “pattern of offending over a significant period of

time”;       (2)     Pardee’s     “continuing         to    have        fantasies     about

prepubescent         children”;    (3)    Pardee’s         “intimacy       deficits   with

same-age      peers”;    (4)     Pardee’s     practice          of    “inserting    himself

into situations where he has access to children through families

that    he    befriends”;        (5)   his    “emotional             identification   with

children”; (6) his impulsivity and pattern of substance abuse;

(7)     his        association     with       “negative          peers      of     negative

influences”; and (8) the fact that Pardee would not have any

conditions         of   supervised        release.              Dr.     Davis    testified

similarly, noting that Pardee failed “in his ability to make use

of the treatment information that he previously had and [failed]

to     appreciate       the    risks     in       which    he    placed     himself    for

reoffense.”

       Pardee’s expert, Dr. Luis Rosell, testified that in his

opinion, Pardee would not have serious difficulty in refraining

from child molestation if released, because, although he did

engage in child pornography, he did not engage in any “hands-on

offending” while on state parole or on supervised release.

       The parties stipulated into evidence the experts’ reports;

documents relating to Pardee’s participation in the sex offender

treatment programs; documents establishing and relating to his

1993 conviction; documents establishing and relating to his 2002

                                              5
conviction,      including       the     presentence            report;    and     documents

relating to his 2006 supervised-release revocation.

      The presentence report relating to Pardee’s 2002 conviction

and   sentencing      described        the   child        pornography       that    was    the

subject of the offense.            It also described evidence seized from

Pardee’s residence at the same time that the child pornography

was   seized,    including       three       videos       that    Pardee     had    made    at

company picnics, in which Pardee focused the camera on blonde

prepubescent females and pointed the camera down the fronts of

their dresses to view their chests.                    While Pardee was given the

opportunity      to     object     to    the       2002    presentence           report,    he

objected only to the use, for purposes of his criminal history,

of a 1993 driving-under-the-influence conviction.

      The district court ruled on Pardee’s commitment from the

bench,   finding      that   the       government         had    proven     by    clear    and

convincing      evidence     that       Pardee      was     sexually       dangerous       and

should be committed under the Adam Walsh Act.                        The court focused

on    Pardee’s        lack   of         empathy       toward        victims        and     the

ineffectiveness of his prior treatment.                          It noted that Pardee

downloaded      child     pornography          after      he     completed        treatment,

relying on his 2002 presentence report to describe the types of

images that Pardee had possessed.                  The court also referenced one

of the video tapes Pardee took at a company picnic as more

evidence   that       treatment     had      not    worked,        noting    that     Pardee

                                             6
placed   himself   in   high-risk   situations    even   after   receiving

treatment.   The court concluded, “And with all of the history,

with all of the issues, with all of the information available to

me, I have come to this conclusion that [Pardee was] suffering

still from this serious difficulty in refraining from sexually

violent conduct or child molestation.”           The court memorialized

its ruling in a written commitment order, dated April 27, 2012.

     From that order, Pardee took this appeal.


                                    II

     For his primary argument, Pardee contends that the district

court erred when it considered and relied on the contents of the

presentence report from his 2002 conviction for possession of

child pornography.      He makes his argument as follows:

     The primary factual dispute in this appeal involves
     the   district  court’s   acceptance of   the  factual
     allegations contained in Mr. Pardee’s 2002 Presentence
     Report (“PSR”). . . . The PSR contained specific and
     detailed allegations about the content of child
     pornography that Mr. Pardee possessed.        It also
     contained allegations about a video of a company
     picnic that Mr. Pardee filmed, alleging that this
     video unduly focused on young girls at the picnic.
     The government did not present independent evidence of
     these allegations [and] . . . Mr. Pardee had no
     opportunity to cross-examine any witnesses concerning
     the allegations in the PSR.

In short, Pardee argues that the 2002 presentence report was

inadmissible hearsay and its admission denied him his right to




                                    7
the confrontation of witnesses, as articulated in Crawford v.

Washington, 541 U.S. 36 (2004).

     Because    Pardee     did   not    object    to   the    2002   presentence

report before the district court, we review its admission for

plain error.     See United States v. Baptiste, 596 F.3d 214, 220

(4th Cir. 2010).

     In 2002, after Pardee was charged with possession of child

pornography, in violation of 18 U.S.C. § 2252A(a)(5), he pleaded

guilty,    stipulating     to    the   factual    basis      for   the   charges,

including his acknowledgement of his 1993 conviction for first

degree child molestation as relevant to aggravated sexual abuse

involving a minor for sentencing purposes.                    See 18 U.S.C. §

2252A(b)(2).    In connection with his sentencing, the probation

office    prepared    a   presentence    report    that      described   in   some

detail Pardee’s offense conduct and the pornographic images that

he possessed.        It also described three video tapes seized from

Pardee’s residence at the same time that the pornographic images

were seized.    The report states that Pardee made the video tapes

during employee picnics in 1999, 2000, and 2001 and describes

that they were taken with the camera “pointed down the shirt” of

blonde prepubescent females so as to reveal their chest areas.

The report describes how Pardee’s conduct at the picnics was

further investigated by federal law enforcement officers and the

evidence was then referred to state officials.

                                        8
       Pardee       was     given     the     opportunity     to   challenge      the

presentence report and have the court resolve any objections.

His only challenge at that time, however, was to the computation

of his criminal history by using a conviction for driving under

the influence.            He made no objection to the description of the

video tapes seized from his residence.

       The 2002 presentence report was an official document that

was required to be prepared before sentencing and was required

to be provided to Pardee, as well as the court, for purposes of

sentencing.      See 18 U.S.C. § 3552(a), (d); Fed. R. Crim. P. 32.

       At the commitment hearing in this case, Pardee stipulated

to the admission into evidence of the 2002 presentence report.

Moreover, during the hearing, Pardee acknowledged, pursuant to

questions put to him by his own counsel, that he took the videos

“but never watched [them] again after I recorded [them].”                         He

neither denied making the videos nor challenged the report’s

description of them.              He only denied that he made the videos for

any sexual purpose and explained that they also depicted other

persons and events at the picnics.

       In    view    of     the    fact     that    the   presentence   report    was

stipulated into evidence and used by Pardee at the hearing, it

is curious that Pardee argues that he can now, for the first

time    on    appeal,       challenge       its    admissibility   on   grounds    of



                                              9
hearsay and denial of confrontational rights.                   We conclude that

Pardee has waived these arguments.

     Moreover, Pardee could hardly have had any basis to object

to the report even had he made an objection at the commitment

hearing.        The report was an official document connected with

Pardee’s 2002 conviction and sentencing, that was created after

Pardee had a right to object to it and have it changed in any

way appropriate.      It was required to be prepared and was used in

the court’s sentencing.           It was surely admissible into evidence

before the district court here as an official document.                         See

Fed. R. Evid. 803(8).

     Pardee’s argument that he was denied the right to cross-

examine witnesses about the 2002 presentence report would also

have been unsupportable, had he raised it.                First, Crawford, on

which he relies, applies only to criminal cases, not to civil

proceedings such as this.          Second, he himself would be the best

witness    to    describe   his   own   video    tapes    and    to   correct   any

errors in their description.

     Finally, aside from all these barriers, Pardee would have

to demonstrate that the admission of the 2002 presentence report

affected his substantial rights.                But this too rings hollow.

The issue before the district court was whether Pardee would

have serious difficulty now in refraining from sexually violent

conduct or child molestation if released.                The 12-year old video

                                        10
tapes could hardly be the centerpiece of the evidence necessary

to make that determination.    And the district court did not make

it so, alluding to it only as an example of how Pardee did not

learn from his participation in sex offender programs.

     For all the reasons given, we reject Pardee’s challenge to

the admission and consideration of his 2002 presentence report.


                                III

     Pardee also mounts three constitutional challenges to the

Adam Walsh Act, arguing that § 4248 creates an unconstitutional

criminal proceeding; that § 4248 violates the Equal Protection

Clause; and that § 4248 violates the Due Process Clause.       But

Pardee appropriately concedes that circuit precedent forecloses

each of these claims.   See United States v. Timms, 664 F.3d 436,

449, 454-55 (4th Cir. 2012); United States v. Comstock, 627 F.3d

513, 524-25 (4th cir. 2010).     Accordingly, we need not address

these challenges further.

     For the foregoing reasons, we confirm the district court’s

order committing Pardee to the custody of the Attorney General.



                                                          AFFIRMED




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