                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 13-6792


UNITED STATES OF AMERICA,

                Petitioner – Appellee,

           v.

RANDLE PORTER COOKE,

                Respondent – Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Louise W. Flanagan,
District Judge. (5:09-hc-02034-FL-JG)


Argued:   March 18, 2014                  Decided:   April 7, 2014


Before TRAXLER, Chief Judge, DUNCAN, Circuit Judge, and DAVIS,
Senior Circuit Judge.


Affirmed by unpublished per curiam opinion. Senior Judge Davis
wrote a separate opinion concurring in the judgment.


ARGUED: James B. Craven, III, Durham, North Carolina, for
Appellant. Matthew Fesak, OFFICE OF THE UNITED STATES ATTORNEY,
Raleigh, North Carolina, for Appellee.    ON BRIEF: Thomas G.
Walker, United States Attorney, R.A. Renfer, Jr., 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Unpublished opinions are not binding precedent in this circuit.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 CURIUM:

     On    this     appeal,    Randle        Porter    Cooke    challenges     his

designation as a sexually dangerous person and consequent civil

commitment under the Adam Walsh Child Protection and Safety Act

of 2006, 18 U.S.C. §          4248.     For the reasons that follow, we

affirm.



                                        I.

     Cooke has been convicted and imprisoned three times as a

result    of   sexual    contact     with    minors.     In    1981,   Cooke   was

charged with aggravated sexual assault for fondling a boy under

the age of 13.          He pleaded guilty to an attempted felony, for

which he received a suspended two-year sentence.

     In 1991, Cooke was convicted in Texas state court of sexual

assault of a child and indecency with a child.                    The first of

these charges related to his performing oral sex on and touching

the genitals of a fourteen-year-old boy.                The second related to

his touching the genitals of another boy under the age of 17.

He was sentenced to 10 years’ imprisonment and was released in

November of 2000.

     The   events    leading    to    Cooke’s    most    recent   incarceration

began seven months later.          In May of 2001, he met a twelve-year-

old boy in a bookstore.        Cooke told the boy and the boy’s mother

that he was a “big brother” who mentored young people.                       Cooke

                                             2
began communicating with the boy by email and was allowed to

take him on an outing.                 He drove the boy to a cemetery and, en

route, Cooke attempted to hypnotize the boy and placed his hand

on   the   boy’s        penis.     At     the    cemetery,      Cooke    gave       the    boy

marijuana        and    asked    him     to    engage    in    oral    sex.         The    boy

declined.

      Cooke took the boy home, but continued to try to contact

him until October of 2001.                    To avoid detection by the boy’s

parents, Cooke asked the boy to refer to him as though he were a

15-year-old boy named “Josh,” and wrote the boy letters under

that name.         Cooke also contacted one of the boy’s schoolmates

online, again posing as a boy named “Josh,” in an attempt to set

up a meeting.

      In October of 2001, Federal Bureau of Investigation agents

interviewed Cooke.              He told the officers that he was initially

sexually attracted to the boy and had hoped to have a sexual

relationship.            He    claimed,       however,    to    have    since       regained

control    over        his    sexual    urges.        Cooke    permitted      the    FBI    to

search     his    computer       where    investigators        found    more    than       100

photographs of teenaged males between the ages of 11 and 20

engaged in sexual conduct and one photograph of a 9-year-old boy

posed provocatively with his underwear exposed.

      As a result, Cooke was charged with and pleaded guilty to

one count of possession of child pornography in violation of 18

                                                  3
U.S.C.      § 2252(a)(4)(B)         and       two    counts     of    receipt         of    child

pornography        in   violation       of    18    U.S.C.     § 2252(a)(2).               He   was

sentenced to 87 months’ imprisonment and three years’ supervised

release.

       Prior to Cooke’s 2010 release date, the Attorney General

filed a certification in the Eastern District of North Carolina

that       Cooke   is   a    sexually         dangerous       person. 1          This       filing

automatically stayed Cooke’s release from prison and initiated

commitment proceedings.

       During those proceedings, an evidentiary hearing was held

before      a   magistrate     judge         to    determine     Cooke’s        status       as   a

sexually dangerous person.                   Cooke and two experts testified on

his behalf and three experts testified for the government.

       The      government     also          introduced        instances         of        Cooke’s

misconduct in prison.              For example, Cooke sought to have himself

placed in protective custody by presenting prison officials with

what       purported    to    be    a     threatening         note.         It    was        later

discovered that Cooke had written the note himself.                               On another

occasion,       Cooke    developed        a       relationship       with   a     22-year-old


       1
       Though Cooke was convicted of the underlying offenses in
the Western District of Tennessee, he was in custody within the
Eastern District of North Carolina at the time the certification
was filed.   The Adam Walsh Act provides that the certification
is to be filed, and commitment proceedings conducted, in the
district within which the respondent is incarcerated, not the
district in which he was convicted. 18 U.S.C. § 4248(a).


                                                     4
fellow inmate, with whom he tried to secure private time in the

prison chapel.      This inmate was a mental health patient with his

own history of sexual offenses.                   Discussing his fondness for

this inmate, Cooke confided in a prison official that he liked

“young, troubled boys.”

     Cooke   was    transferred       to   FCI    Butner       where   he     sought    to

participate in the the Sex Offender Treatment Program, but was

initially    denied       access    because       his    release       date    was     too

distant.     When    he    became    eligible      for    the    program,      however,

Cooke declined to participate because statements made in the

program could be used against him in proceedings such as this.

     Cooke    testified       that    he    would        gladly       participate      in

treatment, but his plans for doing so were vague.                        Cooke’s only

specific post-release plan to avoid relapse was to live at the

same assisted living facility as his mother.                    His plan indicated

his desire to live peacefully, have long-postponed surgery, seek

therapy, and generally avoid returning to his former habits.                            It

did not indicate the development of any special knowledge or

skills to help him avoid situations or stimuli that might lead

him to reoffend.          To the contrary, the government introduced

correspondence between Cooke and another convicted sex offender

exchanged in late 2011 and early 2012.

     Two forensic psychologists, Dr. Gary Zinik and Dr. Lela

Demby,   testified    as     expert    witnesses         for    the    government       on

                                              5
direct.            Dr.    Zinik    diagnosed      Cooke      with    “Paraphilia       NOS,

Hebephilia, attracted to Adolescent Males, Nonexclusive Type,” 2

“Cannabis Dependence by history, in remission in a controlled

environment,”             “Narcotics     Dependence          (pain     medication),      in

remission          in     a    controlled       environment,”        and     “Personality

Disorder NOS, with Antisocial and Narcissistic Features.”                              J.A.

725.       Dr. Zinik concluded that there was a “high level” of risk

that       Cooke    would      reoffend,     despite    the     fact    that    Cooke    is

paralyzed from the waist down and is often catheterized.                                Dr.

Zinik noted that Cooke was similarly impaired at the time of

most of his previous offenses.

       Dr.     Zinik          observed   that     Cooke’s      “predatory”       advances

towards a vulnerable fellow inmate belies Cooke’s claims that he

has changed his behavior.                J.A. 724.        Cooke’s “vague, evasive”

responses      to        questions   about      his   past    offenses       suggest   that

Cooke does not really “get” his condition and that he “thinks

and talks like an untreated sex offender.”                             Id.      Dr. Zinik

concluded that “Mr. Cooke is still at least a medium-high to

high risk for sexual reoffense” and that he remains “physically

capable of molesting young boys in the same fashion as he has in

the past if he were motivated to do so.”                      J.A. 728.



       2
           “NOS” is an abbreviation for “not otherwise specified.”



                                                  6
      Dr. Demby similarly concluded that “it is highly likely

that Mr. Cooke will continue to sexually reoffend.”                            J.A. 759.

She diagnosed Cooke with “Paraphilia Not Otherwise Specified,”

“Narcotic Dependence in a Controlled Environment (by history),”

and    “Personality        Disorder        Not        Otherwise       Specified         with

borderline Traits.”            J.A. 752.        She further opined that Cooke’s

physical condition would not impede him from reoffending, noting

as Dr. Zinik did, that Cooke has offended repeatedly in his

current condition.         In fact, Dr. Demby observed that “[Cooke’s]

disability     appears     to    serve     as    part    of     his    ability    to     get

parents and victims to trust him.”                     Id.     Also like Dr. Zinik,

Dr.    Demby         concluded     that         Cooke        “demonstrates        extreme

minimization and denial of his offenses, as well as attitudes

that support his sex offenses.              Both of these factors exacerbate

his risk of reoffense.”           J.A. 758.

      Dr.     Joseph    Plaud,     a     psychiatric         expert,     testified        on

Cooke’s     behalf.       Dr.     Plaud    testified          that    Cooke’s     evident

attraction      to     young     pubescent       boys     did     not    constitute        a

diagnosable mental illness.               He also criticized the predictive

models used by Dr. Zinik and Dr. Demby, contending that there is

no    model    that     could     reliably           determine       Cooke’s     risk    of

reoffending given his physical condition.

      Dr.     Moira    Artigues     also        testified       on    Cooke’s     behalf,

recounting his painful and debilitating conditions and opining

                                                 7
that these       conditions        had    worsened       while     he    was   in    custody.

Although these impairments reduced the risk that Cooke would

reoffend, Dr. Artigues did not testify that Cooke presented a

“low risk” of reoffense.                 She did not physically examine Cooke

and did not have the opportunity to review all of Cooke’s most

recent      medical   records.           Her    testimony       was     largely     based    on

Cooke’s own statements and the other expert reports.

       Finally, Dr. Roscoe Ramsey, Cooke’s treating physician at

FCI    Butner,    testified        for    the    government         on    rebuttal.         Dr.

Ramsey      testified       that    Cooke’s          physical       condition        had    not

deteriorated during his last three years of detention.

       The magistrate judge recommended that “the court enter an

order finding by clear and convincing evidence that respondent

is a sexually dangerous person within the meaning of 18 U.S.C. §

4247(a)(5) and committing him to the custody and care of the

Attorney General pursuant to 18 U.S.C. § 4248(d).”                                  J.A. 598.

On de novo review, the district court agreed.                         J.A. 653-73.



                                               II.

       18    U.S.C.   §     4248    provides         for    the    civil    commitment       of

individuals      in   the    custody       of    the     Federal      Bureau    of    Prisons

following      the    expiration         of     their      prison       sentences     if    the

government can prove, by clear and convincing evidence, that

they     are    “sexually      dangerous.”                 To     establish     this,       the

                                                     8
government           must        show     that      an     individual         “has      engaged     or

attempted           to     engage       in    sexually          violent       conduct     or    child

molestation,” 18 U.S.C. § 4247(a)(5); that he “suffers from a

serious       mental           illness,      abnormality,         or    disorder,”       18    U.S.C.

§   4247(a)(6); and that, as a result, he “would have serious

difficulty in refraining from sexually violent conduct or child

molestation if released.”                     Id.        See also United States v. Hall,

664 F.3d 456, 458 (4th Cir. 2012).                                Cooke concedes the first

prong.        He maintains, however, that the government failed to

prove,        and        the    district       court          erred    in     finding,     that     he

satisfies the latter two. 3

        The    district          court’s      determinations            that    Cooke     presently

suffers from a serious mental illness and that he “would have

serious difficulty in refraining from sexually violent conduct

or child molestation if released” are factual determinations,

which we review for clear error.                              See United States v. Wooden,

693 F.3d 440, 451 (4th Cir. 2012); Hall, 664 F.3d at 462.                                          We

therefore may not disturb the district court’s conclusions on

these    points           “simply       because     we     would       have    decided    the     case

    3
     Cooke also argues that the Adam Walsh Act violates his right
to equal protection under the Fifth Amendment because it treats
Bureau of Prisons detainees differently from all other federal
detainees.    He acknowledges, however, that we have already
considered and rejected this argument, see United States v.
Timms, 664 F.3d 436, 449 (4th Cir. 2012), and we do not consider
it further.



                                                          9
differently.”         Easley v. Cromartie, 532 U.S. 234, 242 (2001).

Rather, we may do so only when, “’on the entire evidence’ the

Court is ‘left with the definite and firm conviction that a

mistake has been committed.’”                Id. (quoting United States v.

United States Gypsum Co., 333 U.S. 364, 395 (1948)).                         “If the

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

of the record viewed in its entirety, the court of appeals may

not reverse it even though convinced that had it been sitting as

the   trier      of    fact,   it    would     have       weighed    the     evidence

differently.”         Anderson v. Bessemer City, 470 U.S. 564, 573–74

(1985).     Applying this standard, we are unable to conclude that

the district court clearly erred in either of its challenged

findings.

                                        A.

      We turn first to the district court’s finding that Cooke

presently “suffers from a serious mental illness, abnormality,

or disorder.”         18 U.S.C. §      4247(a)(6).         We find the district

court’s conclusion amply supported by the record developed at

the evidentiary hearing.

      Of   the    three   experts     who    testified      about    whether    Cooke

suffers from a serious mental disorder, two concluded that he

did: Dr. Zinik and Dr. Demby diagnosed him with both Personality

disorder    and       Paraphilia     NOS,    which    they     characterized      as

serious,    relating      to   his    inability      to    refrain    from     sexual

                                             10
contact with pubescent boys.                    Dr. Plaud disagreed with these

diagnoses, but primarily on the basis that the paraphilia with

which Dr. Zinik and Dr. Demby diagnosed Cooke--hebephilia--was

not a diagnosable mental disorder and was not included in the

current     version      of     the   Diagnostic       and    Statistical      Manual    of

Mental Disorders (“DSM”).

       As most, however, this indicates a conflict in the experts’

testimony,         the   district      court’s       resolution     of   which     we   are

“especially reluctant to set aside.”                         Hall, 664 F.3d at 462

(quoting Hendricks v. Central Reserve Life Ins. Co., 39 F.3d

507,    513       (4th   Cir.    1994)).        In    the     absence    of   any    other

indication that Dr. Plaud’s testimony should have been credited

over Dr. Zinik’s and Dr. Demby’s, we decline to do so.

       In     a    similar      context,   we     have       also   cautioned      against

overreliance on the availability of a formal label:

       [O]ne will search § 4247(a)(6) in vain for any
       language   purporting to   confine  the  universe  of
       qualifying mental impairments within clinical or
       pedagogical parameters.   The statute could have been
       drafted to comport with clinical norms, but inasmuch
       as Congress chose not to do so, it has been left to
       the courts to develop the meaning of “serious mental
       illness, abnormality, or disorder” as a legal term of
       art.

United States v. Caporale, 701 F.3d 128, 136 (4th Cir. 2012).

Our    discussion        of   Dr.     Plaud’s    views      in   Caporale     is   equally

applicable here: while “Dr. Plaud's testimony cast some doubt

that hebephilia may [qualify as Paraphilia NOS as listed in the

                                                 11
DSM]. . . the scope of ‘illness, abnormality, or disorder’ in §

4247(a)(6) is certainly broad enough to include hebephilia, by

its own or any other name.”                    Id. at 137.           Here, the district

court properly focused not on labels, but on whether Cooke’s

condition--whatever        it    may      be   called,        and    whether    or    not   it

could    form   the    basis         of   a    formal         psychiatric       diagnosis--

substantially       impairs      his      ability        to    function     normally         in

society.       It concluded that Cooke’s impairment was clear, as

manifested in his “long periods of incarceration, feelings of

shame and humiliation, and distressed familial relationships.”

J.A.    664.     Nothing        in    the      record     persuades       us    that       this

conclusion was erroneous.

       Cooke contends that, whatever serious mental illness he may

have suffered from in the past, he does not presently suffer

from one as required by 18 U.S.C. §                      4247(a)(6).      But there was

ample    evidence     to   suggest         that      Cooke’s        condition    persists.

While Cooke testified that he no longer experiences the urge to

have sexual contact with pubescent males, there was substantial

evidence in the record to suggest otherwise.                         Both Dr. Zinik and

Dr. Demby both spoke directly to this point, testifying that

Cooke remains in the grip of his illness.                            The district court

noted that hebephilia is a persistent condition as evidenced

both by expert testimony and Cooke’s own history of repeated

reoffense.       Cooke’s        failure        to    undergo        treatment,       and    his

                                                    12
continued      communication       with     another    sex       offender,   similarly

undermine Cooke’s contention that he has taken control of his

own behavior through self help.

                                            B.

       Cooke also objects to the district court’s conclusion that

he “would have serious difficulty in refraining from sexually

violent conduct or child molestation if released.”                           18 U.S.C.

§    4247(a)(6).      This inquiry focuses on “the extent to which the

inmate is controlled by the illness.”                  Wooden, 693 F.3d at 460.

On   this     prong   as   well,     the    district        court’s      conclusion   is

adequately supported by the evidence.

       The district court properly observed that Cooke has a long

history     of     child   molestation       that,     in      itself,    demonstrates

occasions on which Cooke was controlled by his illness, and with

tragic results.        “When the question is whether an inmate . . .

will   have      serious   difficulty       refraining         from    re-offending    if

released,        consideration     of     the    nature     of    his    prior     crimes

provides a critical part of the answer.”                        Wooden, 693 F.3d at

458.    While Cooke was evidently able to control his behavior

during his most recent time in prison, the same could be said of

his prior incarceration in Texas state prison after which Cooke

reoffended       within    months.         Moreover,      as     the    district    court

observed, Cooke had no access to pubescent males while he was

incarcerated.         It is therefore difficult to say with certainty

                                                 13
whether Cooke was able to control his own behavior, or whether

the prison environment controlled it for him.                     In this context,

we cannot conclude that the district court erred in considering

Cooke’s      interactions    with      a   “young,    troubled”       fellow   inmate,

even if there was nothing inherently inappropriate about their

relationship.

       Cooke’s own testimony also indicated to the district court

that he was not prepared to accept responsibility for his past

actions.       The district court observed that Cooke’s responses to

questions typically minimized his own responsibility, suggesting

that he “fails to appreciate the seriousness of his hebephilia

and the extent to which it controls his offending.”                          J.A. 669.

Such   a     judgment    about    a   witness’s      demeanor   on     the   stand    is

another      textbook    example      of   a   determination     to    which    we   owe

particular deference.            See United States v. McGee, 736 F.3d 263,

270 (4th Cir. 2013).          Dr. Zinik and Dr. Demby corroborated this

observation.

       The    district     court      discussed      Cooke’s    relapse-prevention

plan as well.           The district court noted Dr. Zinik’s testimony

that such a plan could be valuable in “identifying triggers of

sexual offending and effective prevention measures to serve as a

resource for both respondent and his support group.”                         J.A. 661.

Measured against this standard, Cooke’s plan--which consists of

nothing      more   than   his     intended      living   arrangements         and   the

                                               14
generalized aspiration to seek treatment and avoid reoffense--

falls well short.             This suggested to the district court, not

unreasonably, that “respondent does not appear to comprehend the

risk of reoffense he faces in the community upon release, as

opposed to in BOP custody where he has no access to pubescent

males.”     Id.

       The district court drew a similar inference from the fact

that Cooke has not participated in the sex offender treatment

program available at FCI Butner since it became available to

him.    Cooke maintains that he had good grounds for not doing so,

and that may be.          An Adam Walsh Act detainee is not obliged to

participate       in   such    a   program    to    secure    his   release.     But

treatment      programs    teach     skills    to   help     an   individual    avoid

reoffending, and the failure to obtain or develop such a skill

set is a relevant consideration in determining the likelihood of

a relapse. 4

       Finally, in view of the fact that every one of Cooke’s

offenses were committed while he was paralyzed from the waist

down and confined to a wheelchair, the district court reasonably

concluded      that    Cooke’s      many     physical      impairments    did    not

   4
     Cooke maintains that he has managed to teach these skills to
himself.   As we discuss above, however, the district court had
ample grounds to disbelieve this testimony, given the contrary
testimony of the government’s expert witnesses and its own
assessment of Cooke’s credibility on the stand.



                                              15
substantially reduce his risk of reoffense.          Even Dr. Artigues

testified that Cooke’s physical impairments merely reduce that

risk; she did not say to what extent.



                                 III.

     For   the   foregoing   reasons,    the   district   court’s   order

committing Cooke to the custody of the Attorney General is

                                                               AFFIRMED.




                                        16
DAVIS, Senior Circuit Judge, concurring in the judgment:

        This is a close case.                 Ultimately, I vote to affirm because

evidence       of    Cooke’s          recent    history        and     his       own     testimony

meaningfully contribute to the satisfaction of the Government’s

burden to establish by clear and convincing evidence that he

still    suffers          from    a    volitional          impairment        that      makes   his

likelihood      of        reoffending         higher       than   that       of    the     typical

recidivist.          His case is therefore distinguishable from United

States v. Antone, 742 F.3d 151 (4th Cir. 2014), in which we held

that     the        district          court’s        finding      regarding            volitional

impairment was not supported by clear and convincing evidence

because, among other reasons, it ignored the offender’s recent

history while assigning determinative weight to the existence of

his prior offenses.

        This case, and these cases generally, are evaluated through

three prisms.             First, the Adam Walsh Act is designed to target

individuals         who    are    different       from      the   rest      of     the     offender

population.         The policy choices Congress has made is rooted in

the     perception         that       there    are     unique     mental          health    issues

associated with these sexual offenders that create a much higher

likelihood      of    recidivism.              Antone,      742      F.3d    at     159;     United

States v. Timms, 664 F.3d 436, 449 (4th Cir. 2012) (holding that

Congress’      rational          interest       was    to    protect        the     public     from

“reasonably foreseeable harm” by ex-convicts).                                    Cf. Kansas v.

                                                      17
Crane,    534    U.S.     407,    413     (2002).       Second,         the    evidentiary

standard in these cases is “exacting”: there must be clear and

convincing evidence that an individual is so impaired that he is

likely to commit a future sexual offense.                        Antone, 742 F.3d at

159.     And third, this standard is a tough one to meet - and the

burden is on the Government to meet it.

       It is important that an appellate court’s reasoning take

care not to shift the burden to an offender to show that he will

not     offend     again;        over-reliance        on     an     offender’s         pre-

incarceration       history       poses    that      risk.        For       example,    the

majority concedes that it is “difficult to say with certainty

whether Cooke was able to control his own behavior, or whether

the prison environment controlled it for him.” Maj. op. at 14.

But the point of the Walsh Act inquiry is to put in place a

standard that the Government must meet with a relatively precise

degree of certainty, i.e., a certainty tested by the exacting

clear    and     convincing       evidentiary        standard.          Similarly,      the

majority       approvingly       cites    the   district         court’s       observation

“that Cooke has a long history of child molestation that, in

itself, demonstrates occasions on which Cooke was controlled by

his illness, and with tragic results.”                  Maj. op. at 13.             But our

case    law     forsakes    this     myopic     focus       on    the       past,   instead

highlighting       that     recent       behavior      is    also       a     particularly

probative data point in these cases. Antone, 742 F.3d at 166.

                                                18
     Despite my concerns about the majority’s approach, I agree

with its ultimate conclusion because, unlike in Antone, Cooke’s

recent history strongly suggests that he suffers from a current

volitional impairment.   Most importantly, the district court’s

assessment of Cooke’s testimony revealed that he was simply not

a credible witness: (1) his plans for obtaining treatment were

not credible; (2) his claimed willingness to take responsibility

for his prior conduct was not credible; and (3) his purported

understanding of the nature of his illness was not credible.    At

least one expert testified that his behavior was demonstrative

of an untreated sex offender.    These credibility determinations,

combined with the lack of a concrete post-release treatment plan

and the record evidence that his interest in young and troubled

boys had endured, were - in the light of the totality of the

factual record - sufficient for the district court find that

Cooke currently suffers from a volitional impairment and would

likely reoffend if not committed for treatment.      The district

court was amply justified in rejecting Cooke’s assertion (only

implied, to be sure) that if he were to reoffend upon release,

it would be because he chose to reoffend and not because he

lacked the volitional control needed to avoid doing so.

     I concur in the judgment.




                                   19
