United States v. John Ballard , 607 F. App'x 337 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-6835
UNITED STATES OF AMERICA,
Petitioner - Appellee,
v.
JOHN MARVIN BALLARD,
Respondent - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Malcolm J. Howard,
Senior District Judge. (5:10-hc-02155-H)
Submitted: June 17, 2015 Decided: June 26, 2015
Before MOTZ, KING, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Lynne L. Reid, L.L. REID LAW, Chapel Hill, North Carolina, for
Appellant. Thomas G. Walker, United States Attorney, R.A.
Renfer, Jr., Michael G. James, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
John Marvin Ballard appeals the district court’s order
civilly committing him as a sexually dangerous person, pursuant
to the Adam Walsh Act, 18 U.S.C. § 4248 (2012). Although
Ballard concedes he meets the first two criteria for civil
commitment; namely, that he has engaged in child molestation in
the past and presently suffers from a serious mental illness,
abnormality, or disorder, he argues that the district court
clearly erred in finding he would have serious difficulty in
refraining from child molestation if released. According to
Ballard, “the evidentiary findings made by the government
experts and adopted by the court are so internally inconsistent
with the facts such that a reasonable fact finder would not
credit them.” Finding no reversible error, we affirm.
A determination of sexual dangerousness “is for the
factfinder to decide among reasonable interpretations of the
evidence and [to] determine the weight accorded to expert
witnesses.” United States v. Hall, 664 F.3d 456, 467 (4th Cir.
2012) (internal quotation marks omitted); see United States v.
Francis, 686 F.3d 265, 275 (4th Cir. 2012) (“[W]hether an
individual is mentally ill to this degree turns on the
significance of the factual information as viewed by the expert
psychiatrists and psychologists.”). The serious difficulty
prong of sexual dangerousness “refers to the degree of the
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person’s volitional impairment, which impacts the person’s
ability to refrain from acting upon his deviant sexual
interests.” Hall, 664 F.3d at 463 (internal quotation marks
omitted).
The evaluation of a particular individual’s risk of
recidivism may be based not only on actuarial tests, but also on
factors such as the offender’s age, his participation in
treatment, his ability to control his impulses, and his
commitment to controlling his behavior. Id. at 464. We have
also considered an individual’s resistance to treatment,
continuing “deviant sexual thoughts,” and “cognitive distortions
and thinking errors about the appropriateness of children as
sexual partners[.]” United States v. Wooden, 693 F.3d 440, 462
(4th Cir. 2012). Although consideration of the nature of the
respondent’s criminal record is a critical part of the serious
difficulty analysis, the Government must also present
“sufficient evidence of an ongoing volitional impairment[.]”
United States v. Antone, 742 F.3d 151, 167-68 (4th Cir. 2014)
(emphasis omitted).
The district court’s factual findings are reviewed for
clear error, while its legal conclusions are reviewed de novo.
United States v. Perez, 752 F.3d 398, 404 (4th Cir. 2014). This
court grants great deference to factual findings based on
credibility determinations. United States v. Heyer, 740 F.3d
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284, 292 (4th Cir. 2014). “[I]f the district court’s account of
the evidence is plausible in light of the record viewed in its
entirety, [we] may not reverse it even though convinced that had
[we] been sitting as the trier of fact, [we] would have weighed
the evidence differently.” Wooden, 693 F.3d at 451 (internal
quotation marks omitted). Moreover, “evaluating the credibility
of experts and the value of their opinions is a function best
committed to the district courts, and one to which appellate
courts must defer, and the Court should be especially reluctant
to set aside a finding based on the trial court’s evaluation of
conflicting expert testimony.” Heyer, 740 F.3d at 292.
Although “clear-error review is deferential, it is not
toothless.” Wooden, 693 F.3d at 452 (internal quotation marks
omitted). Thus, “we may discern clear error when a court makes
findings without properly taking into account substantial
evidence to the contrary.” United States v. Caporale, 701 F.3d
128, 140 (4th Cir. 2012) (internal quotation marks omitted). We
have reviewed the record and have considered Ballard’s arguments
and conclude that the district court did not clearly err in
finding that Ballard would have seriously difficulty refraining
from sexually violent conduct or child molestation if released
from incarceration.
Accordingly, we affirm the district court’s order. We
dispense with oral argument because the facts and legal
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contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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