United States v. Robert Arrington

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-6159
UNITED STATES OF AMERICA,
Petitioner - Appellee,
v.
ROBERT T. ARRINGTON,
Respondent - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Louise W. Flanagan,
District Judge; Bernard A. Friedman, Senior District Judge,
sitting by designation. (5:08-hc-02106-FL-JG)
Submitted: August 21, 2012 Decided: September 10, 2012
Before AGEE, DAVIS, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Eric J. Brignac, Research and
Writing Specialist, Raleigh, North Carolina, for Appellant.
Thomas G. Walker, United States Attorney, R. A. Renfer, Jr., G.
Norman Acker, III, Seth M. Wood, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Robert T. Arrington appeals the district court’s order
committing him as a sexually dangerous person under the Adam
Walsh Child Protection and Safety Act of 2006, 18 U.S.C.
§ 4248(a) (2006). We have reviewed the record and affirm.
Arrington’s appeal proceeds in two parts. First, he
levels three constitutional challenges with respect to his
commitment, claiming (1) that § 4248 levies an unconstitutional
criminal punishment; (2) that § 4248 violates equal protection
principles by limiting its application only to prisoners; and
(3) that the length of the delay between certifying Arrington as
a sexually dangerous person and holding the civil commitment
hearing violated his right to due process. As Arrington fully
concedes, however, each of these arguments is entirely
foreclosed by this court’s decision in United States v. Timms,
664 F.3d 436 (4th Cir. 2012).
Arrington’s lone remaining argument on appeal contends
that the district court committed clear error in certifying him
as a sexually dangerous person. In this respect, the district
court’s factual findings are reviewed for clear error, while its
legal conclusions are reviewed de novo. United States v. Hall,
664 F.3d 456, 462 (4th Cir. 2012). Where the district court’s
factual findings are based on its evaluation of conflicting
expert testimony, we are “especially reluctant” to set aside its
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determinations. Id. (quoting Hendricks v. Cent. Reserve Life
Ins. Co., 39 F.3d 507, 513 (4th Cir. 1994)).
Given Arrington’s stipulations that he previously
engaged in child molestation and suffers from a serious mental
disorder, the Government was required to prove by clear and
convincing evidence only that Arrington would have serious
difficulty in refraining from sexually violent conduct or child
molestation if released. 18 U.S.C. § 4247(a)(6) (2006); Hall,
664 F.3d at 463. The “serious difficulty” prong of the
certification proceeding refers to the degree of an individual’s
“volitional impairment”; that is, his “ability to refrain from
acting upon his deviant sexual interests.” Hall, 664 F.3d at
463.
Arrington asserts that the district court improperly
discounted both his low scores on the Static-99R as well as his
remaining in the community for more than three years without
perpetrating another hands-on sexual offense. But the first
strand of Arrington’s argument fails to appreciate that the
results of actuarial tests are not dispositive in determining a
particular individual’s likelihood of reoffending. While the
proof of serious difficulty in controlling behavior “must be
sufficient to distinguish the dangerous sexual offender . . .
from the dangerous but typical recidivist convicted in an
ordinary criminal case,” it is nonetheless the case that an
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individual’s “inability to control behavior will not be
demonstrable with mathematical precision.” Kansas v. Crane, 534
U.S. 407, 413 (2002). As we have previously explained, the
determination of a particular individual’s risk of recidivism
may rely not only on actuarial tests, but also on factors such
as his participation in treatment, his ability to control his
impulses, and his commitment to controlling his behavior. Hall,
664 F.3d at 464. Because these are precisely the factors the
district court considered in Arrington’s case, we find no clear
error in its conclusions.
Likewise, because “[e]valuating the credibility of
experts and the value of their opinions is a function best
committed to the district courts,” it was not clearly erroneous
for the district court to accept the opinion of the Government’s
expert witnesses that Arrington’s three offense-free years in
the community did not mitigate his likelihood of recidivism.
Id. (quoting Hendricks, 39 F.3d at 513).
Accordingly, we affirm the judgment of the district
court. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
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