United States v. Wetmore , 700 F.3d 570 ( 2012 )

United States Court of Appeals
For the First Circuit
No. 11-1626
UNITED STATES OF AMERICA,
Petitioner, Appellee,
v.
JOEL WETMORE,
Respondent, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Patti B. Saris, U.S. District Judge]
Before
Lynch, Chief Judge,
Boudin and Lipez, Circuit Judges.
Robert B. Mann, by appointment of the court, with whom Mann
and Mitchell was on brief for appellant.
Eve A. Piemonte Stacey, Assistant United States Attorney, with
whom Carmen M. Ortiz, United States Attorney, was on brief for
appellee.
November 26, 2012
BOUDIN, Circuit Judge. The Adam Walsh Child Protection
and Safety Act of 2006 ("Adam Walsh Act"), Pub. L. No. 109-248,
tit. III, § 302(4), 120 Stat. 587, 620-22 (codified at 18 U.S.C. §§
4247-4248 (2006)), allows the federal government to seek civil
commitment of "sexually dangerous persons" already in the custody
of the Bureau of Prisons ("BOP"). Once ordered so committed by a
federal court, the person is confined to a treatment facility until
its director or a court finds that the person is no longer sexually
dangerous to others, or will not be dangerous if released under a
prescribed treatment regimen. Id. §§ 4247(h), 4248(e).
Joel Wetmore, nearing the end of a federal criminal
sentence, was the subject of such a civil commitment order and he
now appeals. Wetmore, 56 years old, was born and raised in
Houlton, Maine; he graduated from high school there in 1975 and
over the next 25 years held a variety of jobs, mostly in Maine but
also including a two-year stint in Texas. He eventually settled in
Bangor, Maine, where he resided until October, 1999. Over the
course of his life, Wetmore has served several prison terms for
sex-related crimes:
-- a first conviction in 1981 at age 24, under
Maine law, for unlawful sexual actions with a
minor, specifically, fondling the genitals of
a 12 year old boy, resulting in a 30 day
suspended sentence and six months probation;
-- a second conviction in 1987 at age 31,
under Maine law, for gross sexual misconduct,
specifically, for repeatedly molesting over a
two-year period an 11-year-old boy, resulting
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in an 18 year sentence of which nine years
were served, with an additional four years
subsequently imposed after his probation was
revoked because of the offense that led to his
third conviction; and
-- a third conviction in 2000 at age 44, under
federal law, for possessing over 2,000 images
of child pornography, leading to an 87 month
sentence.
Wetmore had a BOP projected release date from his federal
sentence on November 18, 2006, but, on November 17, the federal
government filed a notice commencing the effort to have him
certified by a court as a sexually dangerous person and to commit
him civilly under the Adam Walsh Act. Under the terms of the
statute, the court may commit an individual "who is in the custody
of the Bureau of Prisons" if the government can prove by clear and
convincing evidence that he is a "sexually dangerous person," 18
U.S.C. § 4248(a) & (d), defined as someone
who has engaged or attempted to engage in
sexually violent conduct or child molestation
and who...suffers from a serious mental
illness, abnormality, 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)(5) & (6).
The district court held a seven-day bench trial beginning
in late 2010 and ending in 2011.1 The court heard expert testimony
1
The lengthy delay between the government's certification and
the trial is neither explained nor complained of by either side.
But the primary reason is likely the constitutional challenges to
the Adam Walsh Act that led to numerous stays of proceedings until
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from its appointed psychological examiner, Dr. Robert Prentky, as
well as from the government's retained expert psychologist, Dr. Amy
Phenix. Other witnesses included government officials, prison
inmates, Wetmore's mother and brother, and Wetmore himself. The
testimony covered Wetmore's life history, including his sexual
experiences and activities. The details are elaborated in the
district court's thorough, 20-page decision. United States v.
Wetmore, 766 F. Supp. 2d 319 (D. Mass. 2011).
In the decision, the district court ruled that the
government had met its burden of proof, determined that Wetmore met
the conditions for certification as a sexually dangerous person,
and ordered him civilly committed. Wetmore now seeks review in
this court, first raising a threshold issue, whether he was
legitimately in BOP custody when the notice was filed; he then
argues that in any event the district court erred in finding that
he suffered from the requisite mental disorder and that he
satisfied the statutory dangerousness test.
The threshold issue presents a legal question. The Adam
Walsh Act permits the government to civilly commit sexually
dangerous persons who are "in the custody of the Bureau of
Prisons." 18 U.S.C. § 4248(a). At the time the government began
the civil commitment proceeding on November 17, 2006, Wetmore was
its constitutionality was ultimately affirmed in United States v.
Comstock, 130 S. Ct. 1949 (2010).
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held in custody under the authority of BOP based on his federal
child pornography conviction with a projected release date of
November 18, 2006. There is no indication that Wetmore had earlier
disputed the November 18 date while in prison.
In 2010, shortly before his commitment hearing, Wetmore
argued that the proceedings should be dismissed; he claimed that on
November 17, 2006, when the government initiated the commitment
process, he had not been in the "lawful" custody of BOP because his
projected release date--if now re-computed--should have been
earlier than November 18. Expressing some doubt as to whether this
mattered, the district court considered the premise and concluded
that Wetmore had been in the lawful custody of BOP when the
government sought his commitment.
The statute itself says nothing about "lawful" custody,
but mere physical control could hardly suffice in all instances:
imagine that Wetmore had been acquitted at trial of child
pornography charges but mistakenly listed as convicted, held in
prison by BOP based on this mistake and then sought to be certified
during this period. So, at the very least, some colorable legal
authority must exist for the detention and the courts normally so
assume. E.g., United States v. Joshua, 607 F.3d 379, 388-89 (4th
Cir. 2010) (fact of BOP physical custody alone not sufficient);
United States v. Hernandez-Arenado, 571 F.3d 662, 666-67 (7th Cir.
2009) (same).
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But it is a different question how far Wetmore can
belatedly challenge alleged sentencing or computational errors at
the commitment stage and which errors might matter. The answer is
not supplied merely by the word "custody"--a chameleon term,
Ramsey v. Brennan, 878 F.2d 995, 996 (7th Cir. 1989)--as applied to
a variety of situations likely never considered by Congress. We
already have held that, in an Adam Walsh proceeding, "to mandate
release of a potentially dangerous individual due to a de minimis
mistake in the timing of initiating the commitment process would be
manifestly inconsistent with the overall structure of the Act."
United States v. Shields, 649 F.3d 78, 87 (1st Cir. 2011), cert.
denied, 132 S. Ct. 1586 (2012).
De minimis mistakes merely illustrate a larger tension.
The mechanics of determining a release date are more complicated
than might be supposed. The federal judge ordinarily imposes a
term of months (e.g., 60 months) and, if another sentence is
already being served by the defendant, chooses whether and to what
extent the new federal sentence will run concurrently or
consecutively to the existing sentence. 18 U.S.C. §§ 3553 (2006
& Supp. IV 2011), 3584 (2010). The defendant may then seek direct
appellate review of this sentence. Id. § 3742; see also Gall v.
United States, 552 U.S. 38, 47 (2007). But often there remain, as
here, complicated adjustments that determine the prisoner's precise
release date, depending on events that already occurred (e.g., time
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spent in custody awaiting trial) or will occur later (e.g., good
conduct time).2
These calculations are ordinarily made administratively
by the Attorney General through the Bureau of Prisons, Kayfez v.
Gasele, 993 F.2d 1288, 1289 (7th Cir. 1993), resulting in a posted
projected release date, sometimes falling much earlier than the
stated sentence of months might suggest. But these sometimes
abstruse calculations, illustrated by Wetmore's own case, may
involve debatable legal and factual issues. The convicted
defendant can contest the projected date through an administrative
proceeding, 28 C.F.R. § 542.10-.19 (2012), and, if dissatisfied,
can ultimately obtain judicial review, 28 U.S.C. § 2241; see also
Reno v. Koray, 515 U.S. 50, 53 (1995); Romandine v. United States,
206 F.3d 731, 736 (7th Cir. 2000).
Given the Adam Walsh Act's incontestible aim to detain
individuals still sexually dangerous upon release, Comstock, 130
S. Ct. at 1960-61, the government argues that post-hoc
computational attacks on the lawfulness of his detention should be
limited to habeas proceedings or tempered by other exhaustion
requirements. Accommodation of new statutes to existing
administrative schemes is the ordinary work of courts where not
2
See 18 U.S.C. §§ 3585(b), 3624(b); 28 C.F.R. § 523.1-.20
(2012); Fed. Bureau of Prisons, U.S. Dep't of Justice, P.5884.03,
Good Conduct Time Under the Prison Litigation Reform Act (2006);
Fed. Bureau of Prisons, U.S. Dep't of Justice, P.5880.28, Sentence
Computation Manual (1999).
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squarely addressed by Congress, but this is the wrong case for
broad rules. As the district court ruled, Wetmore was still
serving his proper federal sentence when the commitment proceeding
began.
Wetmore's contrary arguments stem from a complicated
chronology:
-- On October 22, 1999, he was arrested by
Hampden, Maine, police after a 15-year-old
male reported that Wetmore had performed a
sexual act on him; a second juvenile male
reported that Wetmore had child pornography on
his computer.
-- On February 14, 2000, his state court
parole was revoked and the court imposed the
additional four year state sentence already
mentioned.
-- On April 11, 2000, he was indicted on the
federal child pornography charges, and entered
his guilty plea on July 10, 2000.
-- On October 25, 2000 he received his 87
month federal sentence, to be served
concurrently with the four-year state sentence
he was then serving.
Wetmore's projected release date on his federal sentence was
November 18, 2006. On November 17, 2006, the government filed its
certification request.
Wetmore's first attempt to show unlawful detention is
easily rebuffed. Under federal law, a defendant may receive credit
against his federal sentence for "any time he has spent in official
detention prior to the date the sentence commences." The
provision, 18 U.S.C. § 3585(b), reads:
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A defendant shall be given credit toward the
service of a term of imprisonment for any time
he has spent in official detention prior to
the date the sentence commences--
(1) as a result of the offense for which the
sentence was imposed; or
(2) as a result of any other charge for which
the defendant was arrested after the
commission of the offense for which the
sentence was imposed;
that has not been credited against another
sentence.
The Bureau of Prisons gave Wetmore 115 days of credit
toward his federal sentence for his time in custody between his
state arrest and the revocation of his state probation; this
credit, Wetmore says, was calculated as though his state probation
was revoked on February 13, 2000, when in reality it was revoked on
February 14, 2000. There is some support for this claim and, on
this premise, Wetmore was owed 116 days credit, making his proper
release date one day earlier--namely, on November 17, 2006--the day
the federal certification was filed sometime late in the afternoon.
Wetmore did not raise this argument in the district
court, so it is reviewable only for plain error, Smith v. Kmart
Corp., 177 F.3d 19, 26 (1st Cir. 1999), and a one-day error would
work no miscarriage of justice, cf. United States v. Olano, 507
U.S. 725, 736 (1993). Moreover, a preserved error would have shown
at most the discrepancy of a day or less--an interval even shorter
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than the one we found in Shields to be no cognizable infringement
of the statute's custody requirement. 649 F.3d at 86-89.
Anyway, even accepting Wetmore's premise that he was due
for release on November 17, 2006, the last day of a sentence is
part of that sentence, 18 U.S.C. § 3624(a); Wetmore was still
serving his sentence in BOP custody on November 17 when the
government filed its request; and so the request was timely on its
face and Wetmore's claim appears to fail without any help from
Shields or the limits imposed by the plain error doctrine. If it
was unlawful for BOP to detain Wetmore until 11:59 pm on November
17, Wetmore has yet to explain why.
Wetmore's second theory of why his custody as of November
17, 2006, was unlawful is more complicated and involves a
substantially longer period--one reason why initiating commitment
proceedings a few days earlier or the Shields rule itself might not
always solve the problem of belated attacks on a sentence
calculation. Wetmore says that he was owed credit on his federal
sentence for all or part of the time he spent in custody between
February 14, 2000 (when his state probation was revoked and he
began serving his new state sentence) and October 25, 2000 (when
his federal sentence was imposed).
The district judge who sentenced Wetmore for his child-
pornography offense said that the federal sentence was to run
concurrently with his state sentence; so, Wetmore says, his federal
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sentence should therefore run from the earlier date that his state
sentence began. But concurrency, in this context, typically means
that the federal sentence runs alongside the state sentence from
the date that the federal sentence commences. See U.S.S.G. § 5G1.3
cmt. nn.2, 4 (using the 1998 manual employed in Wetmore's
sentencing). Accordingly, the BOP treated Wetmore's federal
sentence as commencing on the date it was imposed, October 25,
2000. Thereafter, Wetmore's federal sentence ran simultaneously
with his state sentence, and there is no evidence of any intent on
the part of the sentencing judge to back-date the start of
Wetmore's federal sentence in such a way that he would also receive
credit for the time he had already served on his state sentence.
Cf. United States v. Labeille-Soto, 163 F.3d 93, 98 (2d Cir. 1998)
(asserting that sentencing judges lack authority to back-date the
start of the sentences they impose).
Under subsection 3585(b)(2) (quoted above), credit
against Wetmore's federal sentence could be given for his time in
detention prior to the commencement of the sentence "as a result of
any other charge for which [he] was arrested after the commission
of the offense for which the [federal] sentence was imposed," the
probation-violation sentence falling into this category. But that
credit is only available if the detention time "has not been
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credited against another sentence."3 Here, Wetmore's time in
detention between the beginning of his state sentence and the start
of his federal sentence was credited against his state sentence. As
explained earlier, Wetmore also received credit against his federal
sentence for the time he spent in detention between his arrest and
the imposition of his state sentence.
The principle against giving double credit also disposes
of Wetmore's separate claim that he should have been given credit
against his federal sentence for the time he spent in the custody
of U.S. Marshals between February 14, 2000, and October 25, 2000,
to attend federal court proceedings while serving his state
sentence. During these periods, Wetmore was on loan by the state
but still serving his state sentence; and this time was credited to
his state sentence and cannot also be used to reduce further his
federal sentence.
Finally, Wetmore invokes an application note in the
Sentencing Guidelines which does--contrary to usual concurrency
practice--allow the district judge to give a defendant the
functional equivalent of credit for a separate state sentence
3
Section 3585(b)(2) makes "clear that a defendant [can]not
receive a double credit for his detention time." United States v.
Wilson, 503 U.S. 329, 337 (1992). Wetmore says that Wilson
involved a different context, but the Supreme Court's
interpretation reflects statutory language, and case law both in
this circuit and others supports this reading. United States v.
Mills, 501 F.3d 9, 11 (1st Cir. 2007); United States v. Dennis, 926
F.2d 768, 770 (8th Cir. 1991) (per curiam).
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already served before a federal sentence begins. The note,
U.S.S.G. § 5G1.3 cmt. n.2, so allows in cases where the conduct
underlying the state sentence is the same as that for which the
federal sentence is imposed, or if the underlying conduct has been
used to adjust upward the federal sentence--for example, under the
relevant conduct guideline. Lopez v. Terrell, 654 F.3d 176, 178
(2d Cir. 2011), cert. denied 132 S. Ct. 2115 (2012).
While section 5G1.3(b) primarily deals with establishing
concurrent sentences (which is what Wetmore received), the
application note in question also provides that when a judge
imposes a sentence pursuant to § 5G1.3(b), she "should adjust the
sentence for any period of imprisonment already served as a result
of the conduct taken into account in determining the guideline
range for the instant offense if the court determines that period
of imprisonment will not be credited to the federal sentence by the
Bureau of Prisons." U.S.S.G. § 5G1.3 cmt. n.2 (emphasis added).
Wetmore is not entitled to a re-sentencing at this stage;
but anyway the district court that sentenced him made no mistake.
Wetmore's state sentence stemmed from a state probation violation,
and in such cases the defendant does not receive any adjustment to
his federal sentence, see id. § 5G1.3(b) cmt. n.6; moreover, the
revocation of Wetmore's state probation was apparently due to his
prohibited contact with a minor, not because of his possession of
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child pornography,4 and there is no indication that the prohibited
contact played any role in Wetmore's federal sentence.
This brings us to the merits which are far more
straightforward, raising primarily factual issues, apart from one
quasi-legal issue already disposed of in United States v. Carta,
592 F.3d 34 (1st Cir. 2010). The Adam Walsh Act, as already noted,
requires findings that Wetmore (1) previously "engaged or attempted
to engage in sexually violent conduct or child molestation"; (2)
currently "suffers from a serious mental illness, abnormality, or
disorder"; and, finally, (3) that "as a result" of his current
mental condition he "would have serious difficulty in refraining
from sexually violent conduct or child molestation if released."
18 U.S.C. § 4247(a)(5) & (6).
The first requirement--here, prior "child molestation"--
was established by certified court records admitted by stipulation.
Wetmore concedes this and instead argues that the other two
elements--mental state and dangerousness--were not established.
These must be found by "clear and convincing evidence," 18 U.S.C.
§ 4248(d); but the district court's factual evaluation can be
overturned only for clear error, Carta, 592 F.3d at 39.
4
The search of Wetmore's home, which led to the discovery of
child pornography, was not conducted until the day after he had
already been arrested for violating the conditions of his
probation. The statement of David Miranda, Operations Manager at
the BOP Designation and Sentence Computation Center, bears out that
Wetmore's probation was revoked for his association with children,
not for child pornography.
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We start with the determination, on which both experts
agreed, that Wetmore does suffer from "a serious mental illness,
abnormality, or disorder." 18 U.S.C. § 4247(a)(5). They based
their evaluations not merely on prior convictions but on an
evaluation as well of Wetmore's admitted sexual conduct and
attitudes, including many other instances of child molestation,
over a long period and a degree of sexual preoccupation and
activity borne out by the record and by Wetmore's own admissions.
Dr. Prentky also interviewed Wetmore while Dr. Phenix, whom Wetmore
declined to meet, had access to records of his incarceration,
police reports, and his deposition.
That Wetmore has over a long period, when not
incarcerated, been a serial molester of boys below the age of
consent is borne out by an elaborate record and his own admission
"to sexually molesting at least eleven boys [aged] between eleven
and fifteen years old." Wetmore, 766 F. Supp. 2d at 329. His
obsession with this aspect of his sexual life continued even while
he was serving his federal sentence and is amply documented.
Wetmore's argument on the mental illness element is not based on
any dispute about his history, conduct or obsession but rather
about its characterization by the two experts.
Dr. Prentky diagnosed Wetmore with paraphilia not
otherwise specified, with hebephilia as a specifier. He explained
that "paraphilia" is an "intense recurrent pattern of erotic
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interest that goes beyond normal sexual activity." The term
"hebephilia" is commonly used to refer to a sexual interest in
children "in the age range of eleven to fourteen." Carta, 592 F.3d
at 38-39. Dr. Phenix, the government expert, diagnosed Wetmore
with pedophilia, sexually attracted to males, nonexclusive type.
"Nonexclusive type" means that the individual's sexual preference
includes but is not limited to prepubescent children. Wetmore
argues that Dr. Prentky's diagnosis is not a permissible basis for
a finding of the mental illness element, and that Dr. Phenix's
diagnosis of pedophilia was flawed by her inability to examine him
and unsupported by his case history.
Wetmore's critique of Dr. Prentky is a replay of an issue
already resolved in Carta that arises because Dr. Prentky deemed
Wetmore's predominant sexual interest as boys in their early
teenage years. Whether or not one describes as a mental illness
mere sexual attraction to youngsters in the 11-to-14 range--which
is the strict meaning of the term hebephilia--what is a mental
illness, recognized in the Diagnostic and Statistical Manual of
Mental Disorders ("DSM") of the American Psychiatric Association,
is a broad category called "paraphilia," whose diagnostic criteria
are as follows:
1. recurrent, intense sexually arousing
fantasies, sexual urges or behavior;
2. generally involving nonhuman objects,
suffering or humiliation of a partner, or
"children or other nonconsenting persons";
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3. lasting more than six months; and
4. causing clinically significant distress or
impairment, etc.
DSM-IV-TR 566, 568 (4th ed. 2000); see also Carta, 592 F.3d at 40.
This well describes Wetmore, once "distress or
impairment" is understood as extending to Wetmore's condition
manifested in repeated criminal molestations of male minors. Young
teenagers are "children or other nonconsenting partners," Carta,
592 F.3d at 40-41; and Dr. Prentky's use of the phrase paraphilia
not otherwise specified describes a listed mental disorder, see
DSM-IV-TR 566, 568, with the term "hebephilia" merely identifying
prepubescent children as the group to whom Wetmore is attracted. In
short, Dr. Prentky's diagnosis of paraphilia satisfies the required
mental element even if the issue begins and ends with the DSM. Cf.
Carta 592 F.3d at 39-42.
Wetmore directs us to United States v. Neuhauser, 2012
WL 174363, at *2 (E.D.N.C. Jan. 20, 2012), which says that
paraphilia not otherwise specified, with hebephilia as a specifier,
is not a mental illness listed in the DSM. But while the DSM does
not call hebephilia a mental illness when all that is involved is
attraction, neither does it exclude pubescent children as a target
of one otherwise satisfying the criteria for paraphilia. The
important point is that the attraction only amounts to a mental
illness--paraphilia--when it is of the form and degree that
satisfies all of the above listed criteria.
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Dr. Phenix's testimony was similar in substance,
although she declined to limit Wetmore's diagnostic category to
targeting of young teenagers. She agreed that Dr. Prentkey's
diagnosis of "paraphilia NOS, hebephilia" was reasonable, but she
preferred to describe Wetmore more broadly as falling into the
related paraphilia subcategory of pedophilia nonexclusive type,
DSM, supra, at 571-72, viewing his strong sexual interests to
include both pre-pubescent and pubescent children, as well as
postpubescent adolescents and even adults. The two experts'
diagnoses overlapped rather than conflicted, and the district judge
accepted both. Wetmore, 766 F. Supp. 2d. at 332-33.
This brings us to the third requirement under the Adam
Walsh Act. Future dangerousness is often a fraught question
involving prediction, and the stakes are high. Wetmore, confined
since 1999, was hardly in a position to have molested children in
prison. But, as Dr. Phenix pointed out, his erotic preoccupation
continued while incarcerated: in 2007, he sought to obtain a book
describing a sexual relationship between high-school-aged boys, and
in 2008, he was found with pornographic images of young boys
crafted from magazine cutouts.
Both experts agreed that Wetmore, in the words of the
statute's third requirement, would have "serious difficulty" in
refraining from child molestation if released. Their explanations
were extensive and even the summary of their findings, tests and
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analyses in the district court's decision occupies many pages. But
the main points, omitting a wealth of detail easily supplied, see
Wetmore, 766 F. Supp. 2d at 333-36, include the following:
-- the 40-year duration of Wetmore's sexual
preoccupation with young males;
-- Wetmore's past recognition of the danger
posed by his conduct, including a promise to
himself after his 1987 confinement not to re-
offend, but simultaneous inability to refrain
from further instances of molestation;
-- Wetmore's limited exposure to sex offender
treatment, sometimes frustrated by his own
rule violations, which has given no indication
of a lessening of the risk he poses or that he
would be susceptible to further treatment;
-- several standardized predictive tests, used
by both doctors but more extensively by Dr.
Phenix, which all showed a significant risk
that Wetmore would reoffend, most of them
scoring him as a high-risk reoffender;
-- Wetmore's lack of meaningful, long-lasting
adult relationships that could protect him
from reoffending; and
-- Wetmore's advanced age, which, although it
may sometimes temper such sexual
preoccupations, did not mitigate the risk he
posed given his persistent, demonstrated
sexual interest in young boys.
The district court, giving lessened weight only to the
standardized predictive tests, which reflect group statistics,
accepted the explanations and the conclusion. The trial judge
found most persuasive "Wetmore's substantial history of victimizing
young children" and the risk factors that (going forward) the
experts found were likely to maintain rather than reduce the danger
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he presented. See Wetmore, 766 F. Supp. 2d at 336-37. The judge
also pointed out that among all the witnesses called by both sides,
only Wetmore's own testimony disputed the predictions that he was
likely to reoffend. Id. at 336.
Wetmore's brief does not take issue with the finding of
present dangerousness. His argument, in a nutshell, is that some
combination of treatment and supervision should suffice to lessen
the risk he poses and guard against reoffense. The argument rests
on evidence that there are forms of treatment that could reduce the
threat; that conditions requiring treatment would normally be
imposed if Wetmore were confined to supervised release; that
Wetmore has expressed interest in treatment; and that family
members would try to help supervise him.
The statute, however, turns on present dangerousness.
Wetmore was incarcerated for more than a decade; was expelled from
a voluntary sex offender program in prison after just two weeks
when he violated the rules by engaging in sexual activity with two
other inmates; and has a long history of disregarding obligations
and commitments. The district court emphasized Wetmore's lack of
cooperation with supervision and treatment throughout his life.
Dr. Phenix expressly opined that outpatient treatment was
insufficient.
If Wetmore participates in and is responsive to inpatient
sex offender treatment, he may petition for release every six
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months for the duration of his confinement. See 18 U.S.C. §
4247(h). He can be released unconditionally if no longer dangerous
or, if not dangerous under a regimen of sex offender treatment, he
can be conditionally discharged subject to participating in a
prescribed plan. See id. § 4248(e)(1) & (2). That point has not
yet been reached.
Affirmed.
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