United States v. Robert Jordan

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-6363
UNITED STATES OF AMERICA,
Petitioner - Appellee,
v.
ROBERT DAVID JORDAN,
Respondent - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (5:13-hc-02153-BR)
Submitted: November 25, 2014 Decided: January 8, 2015
Before WYNN and DIAZ, Circuit Judges, and DAVIS, Senior Circuit
Judge.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Eric J. Brignac,
Assistant Federal Public Defender, Raleigh, 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Unpublished opinions are not binding precedent in this circuit.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:
Robert David Jordan appeals the district court’s order
committing him as a sexually dangerous person under the Adam
Walsh Child Protection and Safety Act of 2006 (the “Adam Walsh
Act”), 18 U.S.C. §§ 4247-4248 (2012). Jordan argues that the
district court erred in finding that he would have serious
difficulty in refraining from child molestation if released. We
affirm.
The Adam Walsh Act allows for the civil commitment of
sexually dangerous individuals following the expiration of their
federal prison sentences. To civilly commit an individual as
sexually dangerous, the Government must prove by clear and
convincing evidence that the individual: “(1) ‘has engaged or
attempted to engage in sexually violent conduct or child
molestation’ . . . ; (2) currently ‘suffers from a serious
mental illness, abnormality, or disorder’; and (3) as a result
of the illness, abnormality, or disorder, ‘would have serious
difficulty in refraining from sexually violent conduct or child
molestation if released.’” United States v. Heyer, 740 F.3d
284, 291-92 (4th Cir. 2014) (quoting 18 U.S.C. §§ 4247(a)(5)-
(6)).
On appeal, Jordan does not dispute that he meets the
first two criteria for civil commitment in that he has engaged
in child molestation in the past and presently suffers from a
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serious mental illness, abnormality, or disorder. He contends,
however, that the district court erred in finding that he would
have serious difficulty in refraining from child molestation if
released. Specifically, he argues that, in making its findings,
the court improperly minimized Jordan’s seven months of sex
offense-free behavior while on supervised release; failed to
consider the testimony of his expert, Dr. Joseph J. Plaud, that
Jordan’s strange behavior was attributable to a generalized
anxiety disorder rather than indicative of an inability to
control his sexual conduct; and erroneously found that he did
not actively participate in sex offender treatment.
We review the district court’s factual findings for
clear error and its legal conclusions de novo. United States v.
Perez, 752 F.3d 398, 404 (4th Cir. 2014). When the district
court’s findings are based on its assessment of conflicting
expert testimony, we are especially reluctant to set aside the
district court’s determinations. Heyer, 740 F.3d at 292. We
will not reverse the district court’s holding on the serious
difficulty prong unless our review leaves us “with the definite
and firm conviction that a mistake has been committed.” United
States v. Antone, 742 F.3d 151, 165 (4th Cir. 2014) (internal
quotation marks omitted).
“The question of whether a person is sexually
dangerous is by no means an easy one . . . . In the end,
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however, it is for the factfinder to decide among reasonable
interpretations of the evidence and determine the weight
accorded to expert witnesses.” United States v. Hall, 664 F.3d
456, 467 (4th Cir. 2012) (internal quotation marks omitted).
The serious difficulty prong of sexual dangerousness “refers to
the degree of the person’s volitional impairment, which impacts
the person’s ability to refrain from acting upon his deviant
sexual interests.” Id. at 463 (internal quotation marks
omitted). The determination of a particular individual’s risk
of recidivism may rely not only on actuarial tests, but also on
factors such as the individual’s age, his participation in
treatment, his ability to control his impulses, and his
commitment to controlling his behavior. Id. at 464. Also
relevant are 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).
Our review of the record leads us to conclude that the
district court did not err. The court thoroughly described the
evidence and credited the testimony and reports of Drs. Manuel
Gutierrez, Mark Hastings, and Gary Zinik over those of Dr.
Plaud, explaining its weighing of the experts’ opinions, its
reasons for finding Dr. Plaud’s opinion less persuasive than the
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other experts, and its consideration of the other evidence in
the case. The court’s conclusion that Jordan is a sexually
dangerous person finds ample support in the record.
Accordingly, we affirm the district court’s judgment.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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