                       PUBLISHED


UNITED STATES COURT OF APPEALS
             FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,            
             Petitioner-Appellant,
               v.                          No. 12-1205
SEAN ROBERT FRANCIS,
            Respondent-Appellee.
                                     
        Appeal from the United States District Court
   for the Eastern District of North Carolina, at Raleigh.
            Terrence W. Boyle, District Judge.
                    (5:10-hc-02013-BO)

                  Argued: May 17, 2012

                  Decided: July 16, 2012

Before TRAXLER, Chief Judge, and MOTZ and KEENAN,
                  Circuit Judges.



Affirmed by published opinion. Judge Keenan wrote the opin-
ion, in which Chief Judge Traxler and Judge Motz joined.


                        COUNSEL

ARGUED: Ian James Samuel, UNITED STATES DEPART-
MENT OF JUSTICE, Washington, D.C., for Appellant.
James Ryan Hawes, THE EDMISTEN, WEBB & HAWES
LAW FIRM, Raleigh, North Carolina, for Appellee. ON
2                  UNITED STATES v. FRANCIS
BRIEF: Stuart F. Delery, Acting Assistant Attorney General,
Mark B. Stern, UNITED STATES DEPARTMENT OF JUS-
TICE, Washington, D.C.; Thomas G. Walker, United States
Attorney, Raleigh, North Carolina, for Appellant. William
Woodward Webb, THE EDMISTEN, WEBB & HAWES
LAW FIRM, Raleigh, North Carolina, for Appellee.


                          OPINION

BARBARA MILANO KEENAN, Circuit Judge:

   This case began with the government’s initiation of civil
commitment proceedings against Sean R. Francis. The gov-
ernment certified that Francis, who had numerous criminal
convictions based on his repeated conduct of placing threaten-
ing and obscene telephone calls, was a "sexually dangerous
person," within the meaning of 18 U.S.C. § 4248. After con-
ducting an evidentiary hearing, the district court determined
that Francis was not eligible for commitment, because the
government failed to prove by clear and convincing evidence
that Francis would have serious difficulty refraining from sex-
ually violent conduct if released.

   On appeal, the government argues that the district court
erred by failing to make necessary factual findings regarding
Francis’ prior sexually violent conduct and by failing to deter-
mine whether Francis presently suffers from a qualifying
mental condition under the relevant statutes. The government
contends that the district court improperly based its decision
on an "abstract determination" that Francis was unlikely to
commit new offenses of a sexually violent nature. After
reviewing the record, we affirm the district court’s judgment,
because the court appropriately considered the elements
required for civil commitment under 18 U.S.C. § 4248, and
did not clearly err in determining that the government failed
to meet its burden of proving that Francis was a sexually dan-
gerous person.
                     UNITED STATES v. FRANCIS                       3
                                  I.

                                 A.

   The statutory provision that permits civil commitment for
sexually dangerous individuals is set forth in 18 U.S.C.
§ 4248, which is part of the Adam Walsh Child Protection and
Safety Act of 2006 (the Act), Pub. L. No. 109-248, 120 Stat.
587.1 As relevant to this case, the statute provides that individ-
uals in the custody of the Bureau of Prisons (BOP) who are
sexually dangerous may be committed civilly after the expira-
tion of their federal prison sentences. 18 U.S.C. § 4248. A
"sexually dangerous person" is defined as one "who 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). An individual is sexually dangerous
to others if he "suffers from a serious mental illness, abnor-
mality, 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).

   The Attorney General, his designee, or the Director of the
BOP may initiate commitment proceedings by filing in the
district court for the district in which the individual is con-
fined a certification that the individual is sexually dangerous.
18 U.S.C. § 4248(a). The filing of such a certification stays
the release of the individual from custody "pending comple-
tion of procedures," including a full evidentiary hearing. Id.
After the hearing, if the district court concludes that the gov-
ernment proved by clear and convincing evidence that the
individual is sexually dangerous, the court "shall commit" that
individual to the custody of the Attorney General. 18 U.S.C.
§ 4248(d). Once committed, an individual remains confined
until he is "no longer sexually dangerous to others." 18 U.S.C.
§ 4248(e). A committed individual may seek periodic review
  1
   The Act is codified in numerous sections of Titles 18 and 42 of the
U.S. Code.
4                  UNITED STATES v. FRANCIS
of his confinement no sooner than 180 days from the most
recent determination by the district court. 18 U.S.C.
§ 4247(h).

                               B.

   Francis first was arrested in 1998 at the age of 20 after he
placed two threatening telephone calls to randomly-selected
telephone numbers. In both telephone calls, Francis threat-
ened to rape the women who answered the telephone. Francis
was convicted in a New York state court of two counts of
aggravated harassment and was sentenced to a term of three
years’ probation.

   Shortly after his conviction, Francis pleaded guilty to vio-
lating the terms of his probation for failing to participate in
sex offender treatment, lying to his probation officer, and fail-
ing to report to his probation officer as directed. The state
court imposed a sentence placing Francis on continued proba-
tion.

   In November 1999, Francis pleaded guilty to federal
charges, including eight counts of making threatening inter-
state communications, in violation of 18 U.S.C. § 875(c).
These charges arose after Francis placed more than 100
harassing telephone calls to women in several states. In these
calls, Francis often asked the women about their sexual
behavior, demanded that they masturbate, described any per-
sonal information he knew about them, stated that he had
been watching them, threatened to harm them if they con-
tacted police or did not do as he directed, and threatened to
rape or to kill them. Francis was convicted and sentenced to
a term of 22 months’ imprisonment and to a three-year term
of supervised release.

   Based on these federal convictions, Francis’ probation
resulting from his New York state convictions was revoked
and, following that revocation, he received an additional sen-
                   UNITED STATES v. FRANCIS                    5
tence of six months’ imprisonment. Francis was released from
incarceration in July 2001.

   In December 2001, a female college student, "Emily,"
accused Francis of rape. During the investigation conducted
by a local police department, Francis stated that he had
engaged in consensual sexual intercourse with "Emily." Fran-
cis was not arrested, and the police did not file charges in con-
nection with this incident.

   Later in December 2001, Francis’ supervised release was
revoked after he admitted to making about 50 threatening
telephone calls similar in content to the previous calls for
which he had been convicted. Based on this violation of the
conditions of his supervised release, Francis was sentenced to
serve a term of 24 months in prison. He was released in Sep-
tember 2003.

   Within three weeks after his release, Francis began making
similar threatening telephone calls. As a result, in December
2003, Francis was charged with 26 counts of making inter-
state threatening communications, in violation of 18 U.S.C.
§ 875, and four counts of intimidating and threatening a vic-
tim, in violation of 18 U.S.C. § 1512(b)(3). Francis was con-
victed and sentenced to a term of 70 months’ imprisonment
and to a three-year term of supervised release.

   Before Francis’ release from prison on January 12, 2009, a
BOP review panel determined, based on mental health evalua-
tions completed while Francis was incarcerated, that Francis
did not meet the criteria of a sexually dangerous person under
the Act. Upon his release, Francis was not required to register
as a sex offender.

  Francis’ term of supervised release included many require-
ments and conditions, including that he submit to periodic
polygraph examinations. During one such examination in
2009, Francis described numerous sexual acts, for which he
6                   UNITED STATES v. FRANCIS
had not been arrested or charged, in which he claimed to have
sexually assaulted or raped 27 female victims. Francis later
denied committing any of these acts.

   In September 2009, more than seven months after his
release from prison, Francis’ supervised release term was
revoked based on three violations unrelated to placing threat-
ening telephone calls. The first violation occurred when a pro-
bation officer visiting Francis in his home observed that
Francis had rented a pornographic movie. Francis admitted to
the probation officer that he had viewed six pornographic
movies.

   The second violation occurred after Francis stated during a
polygraph examination that he had engaged in sexual relations
with two women he had met on the internet. When Francis
refused to identify the women, he violated the condition of his
probation requiring that he provide requested information to
his probation officer. As a result of committing these viola-
tions, Francis was expelled from a mandatory sex offender
treatment program. This expulsion constituted the third viola-
tion of the terms of his supervised release.

   Based on his commission of these three violations, Francis
was sentenced to serve a term of six months’ imprisonment
and a 12-month term of supervised release. Before Francis’
scheduled release from prison in February 2010, the govern-
ment filed a certificate in the district court stating that mental
health personnel for the BOP had examined Francis and had
issued a preliminary determination that he was sexually dan-
gerous, within the meaning of the Act. The government’s cer-
tification stayed Francis’ release pending an evidentiary
hearing. See 18 U.S.C. § 4248(a).

                               C.

   At the hearing conducted by the district court, Francis testi-
fied that he began making threatening telephone calls at the
                   UNITED STATES v. FRANCIS                    7
age of 13 after his mother informed him that she had received
an upsetting, sexually-explicit telephone call. Francis testified
that his parents had divorced when he was young, and that he
and his mother had had a strained relationship. Francis stated
that during his high school years, his mother physically and
emotionally abused him. According to Francis, he expressed
his anger toward his mother by making threatening telephone
calls to women. Francis stated that he would make as many
as 100 calls in one night, a few of which would include threat-
ening statements.

   Francis stated that the abusive nature of his telephone calls
escalated over time, and that he eventually began threatening
to rape or to murder the women he called. Francis admitted
that by placing the telephone calls, he frightened the women
with whom he spoke. He also admitted that the content of the
calls was sexually explicit and obscene.

   Francis acknowledged his earlier admission that while he
was in college, he placed such telephone calls when he was
intoxicated or distressed. He also acknowledged having made
the statement that when he began dialing the telephone, he
"just couldn’t hang up" and "couldn’t stop [himself]." Francis
testified, however, that he had not placed a threatening or
obscene telephone call since 2003. He also expressed remorse
for frightening the victims of his telephone calls.

   The government introduced into evidence Francis’ prior
admissions of having committed numerous sexual assaults
and rapes for which he had not been arrested or prosecuted.
The government also introduced into evidence a video deposi-
tion of "Emily," who identified Francis as the man who had
raped her. Her description of the details of the attack closely
matched the details that Francis had provided during his poly-
graph examination in 2009, when he admitted raping a 20-
year-old woman. However, Francis recanted this admission
and all his prior admissions of sexual assaults and rapes. He
testified that he had fabricated these incidents because he was
8                      UNITED STATES v. FRANCIS
concerned that unless he confessed to crimes involving physi-
cal contact with victims, he would be terminated from sex
offender treatment and would be required to return to prison.

   This hearing before the district court also included the testi-
mony of four licensed clinical psychologists, who qualified as
experts in the field of forensic psychology. The government
presented the testimony of Dr. Hy Malinek and Dr. Rebecca
Perkins, who both concluded that Francis was sexually dan-
gerous, within the meaning of the Act. Francis presented the
testimony of Dr. Joseph J. Plaud and Dr. Jeffery C. Singer,
who reached the contrary conclusion that Francis was not sex-
ually dangerous, as defined by the Act.

   Dr. Malinek based his conclusions on his initial review of
numerous records and his interview with Francis. In his
report, Dr. Malinek stated that Francis is "one of the most pro-
lific sex offenders I have evaluated." Dr. Malinek testified
that Francis confessed to him that he had made thousands of
threatening and obscene telephone calls. Citing Francis’ 12-
year pattern of placing such calls, Dr. Malinek opined that
Francis suffers from paraphilia, not otherwise specified
(NOS), telephone scatalogia.2

   In assessing Francis’ risk of recidivism, Dr. Malinek evalu-
ated Francis using several actuarial risk assessment instru-
ments, and determined that Francis’ scores on those
instruments were "consistently high," placing his likelihood of
recidivism during a five-year period in a range between 30
and 59.7 percent. Based on these results and on his other eval-
    2
    In his report, Dr. Malinek explained that the Diagnostic and Statistical
Manual of Mental Disorders describes paraphilia as an arousal response to
sexual objects or situations that deviates from normal arousal activity pat-
terns. Paraphilia involves recurrent and intense sexual urges, fantasies and
behavior that involve non-human objects, the suffering or humiliation of
self or others, or children or other non-consenting victims. Dr. Malinek
described telephone scatalogia as a condition present when an individual
is sexually aroused by making obscene telephone calls.
                   UNITED STATES v. FRANCIS                   9
uations, Dr. Malinek opined that Francis was likely to make
obscene phone calls or commit sex offenses involving physi-
cal contact with victims if he were released.

   The government also presented the testimony of Dr. Per-
kins, an employee of the Federal Correctional Institution at
Butner, North Carolina, who conducted her forensic evalua-
tion of Francis based solely on a review of his records. Dr.
Perkins concluded that Francis suffers from sexual sadism and
antisocial personality disorder. She also opined that it was
"highly unlikely" that Francis would fabricate incidents of
prior sexual assaults "of such [a] sadistic degree just to pre-
vent expulsion from treatment."

   In conducting her evaluation, Dr. Perkins employed one
actuarial risk assessment instrument and determined, as did
Dr. Malinek, that Francis scored highly on that instrument,
indicating a greater likelihood of recidivism than most other
sex offenders. In reaching her conclusion that Francis was
sexually dangerous, Dr. Perkins also considered numerous
factors such as Francis’ hostility toward women and his non-
compliance with the terms of his supervised release.

   At Francis’ request, Dr. Plaud conducted an interview and
an evaluation of Francis. Dr. Plaud testified that while Francis
"could" be diagnosed with paraphilia, NOS, telephone sca-
talogia, it was a "weak diagnosis at the present time." Dr.
Plaud opined that Francis suffers from a type of anxiety disor-
der, and that his motivation for placing obscene telephone
calls stemmed from his need to reduce stress and anxiety.
According to Dr. Plaud, Francis’ behavior resulted from his
anger toward women and was not necessarily sexually moti-
vated.

   Dr. Plaud further stated that he found no evidence that
Francis had "ongoing urges" to place threatening and obscene
telephone calls. Dr. Plaud found compelling the fact that fol-
lowing Francis’ most recent release from prison in 2009, he
10                 UNITED STATES v. FRANCIS
demonstrated control for more than seven months and did not
place any such calls during that period.

   Dr. Plaud also testified that he found credible Francis’
explanation regarding his reason for fabricating prior inci-
dents of sexual assaults. Dr. Plaud explained that some recov-
ery and treatment programs require participants to provide full
disclosure regarding their prior victims, which may encourage
some participants to embellish their conduct to remain in the
programs. Finally, Dr. Plaud opined that there are no actuarial
instruments that adequately can evaluate Francis’ risk of
recidivism, because his criminal history of sexual offenses
was based on solely verbal behavior. Dr. Plaud stated that the
groups of sex offenders used for comparative purposes in
such actuarial instruments contain very few people who have
committed offenses that do not involve physical contact with
their victims. Thus, Dr. Plaud concluded that any use of actu-
arial instruments to evaluate Francis would create misleading
results.

   Finally, Dr. Singer testified regarding the conclusions he
reached after interviewing and evaluating Francis. Dr. Singer
stated that he diagnosed Francis with paraphilia, NOS, tele-
phone scatalogia. Dr. Singer opined, however, that this diag-
nosis was not a "serious" mental disorder that predisposed
Francis to commit similar offenses in the future. Dr. Singer
stated that he placed great weight on the fact that during the
seven-month period in 2009 when Francis was living in the
community and was required by the court to have a cellular
telephone, Francis did not engage in placing threatening and
obscene telephone calls.

   Like Dr. Plaud, Dr. Singer opined that the use of actuarial
instruments was inappropriate in Francis’ case because they
were developed to evaluate sex offenders who had been con-
victed of offenses involving physical contact with their vic-
tims. Therefore, Dr. Singer instead used a structured clinical
checklist designed to provide a risk assessment indicating the
                   UNITED STATES v. FRANCIS                 11
future risk of sexual violence by a sex offender. Dr. Singer’s
analysis using that checklist indicated that Francis’ risk for
committing a sex offense in the future was low.

                              D.

   Following the evidentiary hearing, the district court deter-
mined that Francis was not a sexually dangerous person, as
defined by the Act. In the court’s memorandum opinion, the
court first identified the three elements that the government
was required to prove by clear and convincing evidence to
obtain an order of civil commitment. Those elements included
that Francis (1) had engaged or attempted to engage in sexu-
ally violent conduct (the prior conduct element); (2) suffered
from a serious mental illness, abnormality, or disorder (the
mental illness element); and (3) as a result, would have seri-
ous difficulty refraining from sexually violent conduct if
released (the serious difficulty element). See 18 U.S.C.
§§ 4247, 4248.

   With regard to the prior conduct element, the district court
assumed without deciding that Francis previously had
engaged in sexually violent conduct. By assuming that this
element was satisfied, the district court avoided determining
whether Francis’ conduct of placing threatening and obscene
telephone calls "[rose] to the level" of sexually violent con-
duct. The district court addressed Francis’ alleged sexual
offenses involving physical contact only to the extent that the
court found credible Francis’ testimony that many, if not all,
such instances of sexual assault were fabricated or embel-
lished to ensure he remained in sex offender treatment, rather
than being returned to prison.

   Proceeding to consider the mental illness element, the dis-
trict court determined that "at one time" Francis suffered from
paraphilia, NOS, telephone scatalogia, but found that there
was a "question" whether that diagnosis remained accurate.
The court concluded, however, that irrespective whether Fran-
12                 UNITED STATES v. FRANCIS
cis presently suffers from a serious mental disorder, Francis
would not have serious difficulty refraining from sexually
violent conduct if he were released from custody.

   The district court based this conclusion on the testimony
given by Dr. Plaud and Dr. Singer. The court observed that
these expert witnesses had explained the difficulty in using
traditional actuarial risk assessment instruments to evaluate a
person who had not been shown to have engaged in "hands-on
or contact sex offenses." The court also emphasized that these
experts placed great weight on the recent period during which
Francis was released from prison, had a cellular telephone,
and yet had not placed any threatening or obscene telephone
calls. Thus, the district court denied the government’s request
and released Francis to the custody of the United States Pro-
bation Office. The government timely filed an appeal to this
Court.

                              II.

                              A.

   We review the district court’s factual findings for clear
error and its legal conclusions de novo. United States v. Hall,
664 F.3d 456, 462 (4th Cir. 2012). A court commits clear
error when it makes findings "without properly taking into
account substantial evidence to the contrary." Miller v. Mercy
Hosp., Inc., 720 F.2d 356, 361 (4th Cir. 1983). A factual find-
ing is clearly erroneous when the reviewing court, after con-
sidering the entire record, "is left with the definite and firm
conviction that a mistake has been committed." Hall, 664
F.3d at 462 (quoting United States v. U.S. Gypsum Co., 333
U.S. 364, 395 (1948)). Notably, this standard does not permit
a reviewing court to reverse a factual finding on the basis that
the reviewing court would have decided the case differently.
Id. (citing Anderson v. Bessemer City, 470 U.S. 564, 573
(1985)).
                   UNITED STATES v. FRANCIS                   13
   When a district court’s factual findings are based on deter-
minations regarding the credibility of witnesses, we give great
deference to the district court’s findings. Id. Because the dis-
trict court is in the best position to assess the credibility of
witnesses, including those designated as expert witnesses, we
are reluctant to set aside a finding that is based on the court’s
evaluation of conflicting expert testimony. Id. (citing Hen-
dricks v. Cent. Reserve Life Ins. Co., 29 F.3d 507, 513 (4th
Cir. 1994)).

                               B.

   The issue of law before us on which the parties disagree is
whether the district court, in deciding that the government
failed to meet its evidentiary burden in this civil commitment
proceeding, was required to make factual findings regarding
each of the three required elements for civil commitment
under 18 U.S.C. § 4248, even though the government’s failure
to prove any one element would require dismissal of the gov-
ernment’s case. Advancing its position, the government con-
tends that the district court erred in failing to make factual
findings regarding the issue whether Francis raped "Emily" or
committed any other sexual offenses involving physical con-
tact with a victim. The government asserts that the commis-
sion of such acts is relevant to any assessment whether an
individual will engage in such acts in the future.

   The government also contends that the district court erred
in failing to determine whether Francis presently suffers from
a serious mental illness or disorder. According to the govern-
ment, absent such a determination, the district court could not
decide whether Francis’ self-control was impaired because of
such a serious illness or disorder. The government maintains
that because of these alleged errors, the district court improp-
erly based its decision solely on an "abstract determination"
that Francis was unlikely to commit future sexually violent
acts if he were released. We disagree with the government’s
arguments.
14                    UNITED STATES v. FRANCIS
   Initially, we observe that 18 U.S.C. § 4248 requires the
government to prove by clear and convincing evidence that a
certified individual is sexually dangerous. Clear and convinc-
ing evidence produces in the mind of a fact finder a firm
belief or conviction, without hesitancy, about the truth of the
allegations. Hall, 664 F.3d at 461.

   The determination whether a certified individual is sexually
dangerous involves a two-step analysis, requiring that the dis-
trict court determine: (1) whether the individual "has engaged
or attempted to engage in sexually violent conduct or child
molestation;" and (2) whether the individual is "sexually dan-
gerous to others." 18 U.S.C. § 4247(a)(5). The second step
itself involves two distinct inquiries, namely, whether the
individual "suffers from a serious mental illness, abnormality,
or disorder," and whether, as a result of any such condition,
"he would have serious difficulty in refraining from sexually
violent conduct or child molestation if released." 18 U.S.C.
§ 4247(a)(6). Therefore, as the district court correctly
observed, the government was required to prove three ele-
ments by clear and convincing evidence to obtain an order of
civil commitment: (1) that Francis has engaged or attempted
to engage in sexually violent conduct (the prior conduct ele-
ment), (2) that Francis suffers from a serious mental illness,
abnormality, or disorder (the mental illness element), and (3)
that, as a result of any such condition, Francis would have
serious difficulty refraining from sexually violent conduct if
he were released from custody (the serious difficulty element).3
See Hall, 664 F.3d at 461; United States v. Comstock, 627
F.3d 513, 515-16 (4th Cir. 2010).

  The prior conduct element addresses a certified individual’s
previous actions and whether any of those actions constitute
  3
    Because this case does not involve an allegation of child molestation,
we exclude the portion of the statutory language relating to child molesta-
tion from our recitation of the required elements for civil commitment
under 18 U.S.C. § 4248.
                      UNITED STATES v. FRANCIS                         15
a sexually violent act.4 By requiring the presence of such a
predicate act, the statutory framework minimizes the risk of
a court "errantly committing an individual who has in the past
successfully suppressed intense and recurrent sexual
impulses." Comstock, 627 F.3d at 524. Further, this element
"provides a safeguard against commitment premised on inex-
act predictions of future dangerousness." Id. If an individual
has not engaged in prior sexually violent conduct, a district
court need not consider the remaining elements and may dis-
miss the commitment action.

   When a district court determines that a certified individual
has committed a predicate act, however, a court also must
consider whether that individual is sexually dangerous to oth-
ers. In conducting this analysis, a court evaluates the individu-
al’s present mental condition and the likely prospective effect
of that mental condition on his volitional control.

   Because a determination regarding an individual’s ability to
refrain from acting in accord with his deviant sexual interests
is not demonstrable with mathematical precision, the mental
illness element and the serious difficulty element together
ensure that civil confinement is limited to those whose mental
illness renders them dangerous beyond their control. Hall, 664
F.3d at 463 (citing Kansas v. Crane, 534 U.S. 407, 413
(2002)). The issue whether an individual is mentally ill to this
degree turns on the significance of the factual information as
viewed by the expert psychiatrists and psychologists. Id. (cit-
ing Addington v. Texas, 441 U.S. 418, 429 (1979)).

  We conclude that the district court did not err in assuming
without deciding that the government met its burden of proof
with regard to the prior conduct element. In assessing whether
  4
   The regulations adopted pursuant to the Act state that sexually violent
conduct includes "any unlawful conduct of a sexual nature with another
person" that involves, among other things, the "use or threatened use of
force against the victim." 28 C.F.R. 549.92(a).
16                 UNITED STATES v. FRANCIS
Francis committed a predicate act, the district court addressed
Francis’ admissions of previous instances of sexual assaults
and found credible Francis’ testimony that he had fabricated
his reports of some, if not all, of these assaults. Rather than
deciding whether any of these alleged assaults actually
occurred and qualified as sexually violent conduct, the court
instead assumed that Francis’ undisputed conduct of placing
threatening and obscene telephone calls constituted clear and
convincing evidence that Francis had engaged in a qualifying
predicate act.

   Contrary to the government’s position, the district court
was not required to make factual findings regarding each
alleged instance of Francis’ prior sexual conduct or to decide
whether each act constituted sexually violent conduct. Rather,
the district court’s assumption that Francis had engaged in at
least one predicate act was sufficient to satisfy the prior con-
duct element. By assuming that the government met its evi-
dentiary burden to establish this element, the district court
based its remaining conclusions on the premise that Francis
had engaged in sexually violent conduct in the past. See Com-
stock, 627 F.3d at 524.

   The district court next considered whether Francis is sexu-
ally dangerous to others by addressing his mental condition
and volitional control. With regard to the mental illness ele-
ment, the district court found that Francis, at one point, accu-
rately was diagnosed with paraphilia, NOS, telephone
scatalogia. However, the court found credible the testimony of
Dr. Plaud and Dr. Singer, who concluded that Francis did not
presently suffer from a serious mental illness. Additionally,
the district court made clear in its opinion that it did not
accept the clinical judgments of the government’s expert wit-
nesses regarding Francis’ mental condition. Thus, the district
court found that there remained a "question" whether Francis’
prior diagnosis accurately described his present mental condi-
tion.
                   UNITED STATES v. FRANCIS                  17
   This uncertainty expressed by the district court regarding
Francis’ present mental condition demonstrates the govern-
ment’s failure to instill in the fact finder a firm belief that
Francis presently suffers a serious mental illness or disorder.
See Hall, 664 F.3d at 661. Thus, although the district court
should have presented a clearer record for our review by affir-
matively stating a finding regarding the mental illness ele-
ment, the court’s failure to do so in this instance does not
require us to remand the case. The court’s lingering doubt
about Francis’ present mental condition, when considered in
light of the government’s burden to prove this element by
clear and convincing evidence, requires us to conclude that
the court resolved this issue in Francis’ favor. Accordingly, in
answering the question of law presented by the parties, we
hold that a district court’s failure to make a specific finding
regarding each required element under the Act will not neces-
sitate a remand of the case when the record plainly establishes
that the district court resolved the issue of proof of one of
those elements against the government.

   We next observe that the district court could have con-
cluded that Francis was not sexually dangerous based only on
the government’s failure to prove the mental illness element.
See Comstock, 627 F.3d at 515-16. However, the court also
addressed the serious difficulty element. In conducting its
analysis, the district court considered the testimony of the
expert witnesses and found that the testimony of Dr. Plaud
and Dr. Singer was more convincing. Those experts discred-
ited the use of actuarial risk assessment instruments in evalu-
ating Francis, whose adjudicated sex offenses included only
crimes that did not involve physical contact with victims.
Also, Dr. Plaud and Dr. Singer emphasized that the most
compelling evidence of Francis’ ability to control his sexually
violent behavior was his most recent experience in the com-
munity after being released from prison. Thus, Dr. Plaud and
Dr. Singer relied heavily on the fact that for more than seven
months during 2009, Francis possessed a cellular telephone
but did not place any threatening or obscene telephone calls.
18                 UNITED STATES v. FRANCIS
   For these reasons, we conclude that the district court, in
determining that the government failed to prove that Francis
was a sexually dangerous person, did not make an "abstract
determination" regarding Francis’ likelihood to commit future
acts of sexually violent conduct. See Hall, 664 F.3d at 463.
Rather, the district court appropriately considered the evi-
dence as a whole using the framework provided in the Act
and concluded that Francis was not sexually dangerous to oth-
ers, within the meaning of the Act, because the government
failed to meet its burden of proof regarding this required com-
ponent for civil commitment under the Act.

   Our conclusion is not altered by the government’s addi-
tional contention that the district court erred in failing to
address Francis’ testimony that he was unable to control him-
self after he began thinking about placing a threatening tele-
phone call. Francis’ previous difficulty controlling his
behavior was considered by the expert witnesses in rendering
their opinions regarding Francis’ present mental condition and
volitional control. Further, because the record shows that
Francis had not placed such a threatening or obscene tele-
phone call since 2003, this testimony regarding his volitional
control related to impulses occurring more than seven years
before his civil commitment hearing. Thus, in view of the
entirety of the evidence, we cannot say that Francis’ previous
statements about his inability to control his behavior necessi-
tates a conclusion that a mistake has been made. See Gypsum,
333 U.S. at 395.

                             III.

  In sum, we hold that the district court analyzed the evi-
dence in accordance with the framework provided in the Act.
In reaching its conclusion that Francis was not sexually dan-
gerous to others and, therefore, was ineligible for commitment
under 18 U.S.C. § 4248, the district court weighed the testi-
mony of the several expert witnesses and also considered
Francis’ own testimony, finding portions of that testimony
                    UNITED STATES v. FRANCIS                    19
credible. Accordingly, based on this record in which credibil-
ity determinations and assessments regarding the appropriate
weight of expert testimony provided the foundation of the dis-
trict court’s decision, we hold that the district court did not err
in determining that the government failed to prove its case by
clear and convincing evidence, and we affirm the district
court’s judgment.

                                                     AFFIRMED
