United States v. Byron Antone

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-2400

UNITED STATES OF AMERICA,

Petitioner - Appellee,

v.

BYRON NEIL ANTONE,

Respondent - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Louise W. Flanagan,
District Judge. (5:07-hc-02042-FL-JG)

Argued: December 11, 2013 Decided: February 4, 2014

Before GREGORY, DAVIS, and WYNN, Circuit Judges.

Reversed and remanded with instructions by published opinion.
Judge Davis wrote the opinion, in which Judge Gregory and Judge
Wynn joined.

ARGUED: Eric Joseph Brignac, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Raleigh, North Carolina, for Appellant. Michael
Bredenberg, FMC BUTNER FEDERAL MEDICAL CENTER, Butner, North
Carolina, for Appellee. ON BRIEF: Thomas P. McNamara, Federal
Public Defender, G. Alan DuBois, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North
Carolina, for Appellant. Thomas G. Walker, United States
Attorney, R.A. Renfer, Jr., Joshua B. Royster, Assistant United
States Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh,
North Carolina, for Appellee.
DAVIS, Circuit Judge:

Respondent-Appellant Byron Neil Antone appeals the district

court’s order of his civil commitment under the Adam Walsh Child

Protection and Safety Act of 2006 (“the Walsh Act”), codified at

18 U.S.C. §§ 4247-48. Four days before he was to be released

from federal prison, an official of the Federal Bureau of

Prisons certified Antone as a sexually dangerous person eligible

for civil commitment. Upon referral of the ensuing proceedings

by the district court, a federal magistrate judge held a three-

day evidentiary hearing and thereafter issued a report and

recommendation that Antone should not be found to be a sexually

dangerous person. The district court adopted the majority of the

magistrate judge’s factual and credibility determinations, but

it ultimately found that the Government had satisfied its burden

under the Walsh Act to prove that Antone was a sexually

dangerous person, and it committed him to civil custody.

Upon our careful review of the appellate record, we

conclude that the district court lacked sufficient evidence to

find that Antone met the standard for civil commitment under the

Walsh Act. Specifically, the Government did not present clear

and convincing evidence that Antone’s mental illnesses would

cause him to have serious difficulty refraining from sexually

violent conduct. Accordingly, we reverse.

2
 I.

A.

Byron Neil Antone, now forty-one years old, was born in and

raised on the Tohono O’odham Indian Reservation in south central

Arizona. 1 Until age nine or ten, Antone was raised by his mother;

after that point, he resided with his grandmother and his

godmother.

Antone’s mother and grandmother were heavy drinkers and

Antone was often neglected and verbally and physically abused as

a child. At seven years old, Antone was on several occasions

sexually abused by his aunt, who was a teenager at the time. By

the time he was fifteen years old, he had had sexual intercourse

with at least two adult women, one of whom was twenty-six.

Antone had serious behavioral issues as a child, which led

to school expulsions and stints in juvenile detention. He

dropped out of high school in ninth grade. He did not maintain

steady employment thereafter, although he was employed

seasonally as a firefighter with the United States Forestry

1
These facts are a summary of the pertinent factual
findings set forth in the magistrate judge’s memorandum and
recommendation (“M&R”), which was wholly adopted by the district
court. To the extent conflicting inferences might be drawn from
the magistrate judge’s findings, because the Government was the
prevailing party before the district court, we construe the
evidence presented before the magistrate judge in the light most
favorable to, and consistent with, the ultimate determination of
the district court, whose order we review.

3
Service and had attended specialized training classes in that

field.

In 1991, when Antone was nineteen years old, he was

arrested and charged with sexual misconduct with a minor, sexual

abuse, and contributing to the delinquency of a minor. The

arrest related to two sexual acts with a sixteen-year-old who

was Antone’s girlfriend at the time. The first sexual act was

consensual, but the second was forcible rape. Antone pled guilty

to the sexual abuse charge in the Judicial Court of the Tohono

O’odham Nation (“tribal court”) and served about six months in

jail.

In 1997, tribal authorities charged Antone with threatening

and disorderly conduct. He admitted to rubbing the buttocks of

his cousin, then twenty-one years old, while she was sleeping on

the couch. He was sentenced to 60 days in tribal jail.

From 1998 to 1999, Antone was charged by tribal authorities

for several acts of sexual misconduct, which resulted in a

consolidated plea agreement and tribal judgment entered on March

16, 1999. The consolidated tribal judgment related to four

victims and spanned incidents from 1992 through 1997:

1) Forcible rape of a fourteen or fifteen-year-old in

1992 or 1993.

2) Touching of the crotch area of an eleven-year-old in

1996.

4
 3) Sexual assault of C.R., a woman of unknown age, in

June 1997. During this incident, Antone tried to force

C.R. to have sex with him, and when she refused, he threw

her on the bed, held her hands down, touched her breasts,

and touched her crotch area. C.R. was able to escape by

jumping out of her bedroom window.

4) Forcible rape of R.J., age twenty-five, in November

1997. During this incident, R.J. awoke to find Antone on

top of her. He then forced her to have sex for five to

fifteen minutes.

Antone pled guilty to charges related to these four incidents in

the consolidated plea agreement. He was sentenced to 3,600 days

in jail by the tribal court.

Almost all of the incidents described above, and certainly

the June and November 1997 incidents, took place when Antone was

either intoxicated from alcohol and/or high on cocaine. Indeed,

Antone has a serious history of substance abuse. When he was

arrested in February 1998, he was drinking 3 to 5 quarts of beer

a day on average, and up to 11 quarts on some days. He was also

abusing a number of drugs, including marijuana, LSD, and crack

cocaine. As a result, Antone has little to no recollection of

these incidents.

In November 1999, Antone was sentenced in the United States

District Court for the District of Arizona on a sexual assault

5
charge. The particular charge related to Antone’s assault

against C.R. in June 1997, which was also a subject of his

consolidated tribal judgment. In addition, Antone admitted in

the federal plea agreement to sexual misconduct as to all the

incidents covered in the tribal court convictions.

According to the testimony of Antone’s attorney at the

time, which the magistrate judge fully credited, the federal

criminal charge was actually initiated by Antone and his

attorney. “The reason was to enable [Antone] to be transferred

to federal custody and thereby have access to sex offense

treatment at FCI-Butner, which [the attorney] believed would be

designed specifically for Native Americans.” J.A. 845.

The federal district court in Arizona sentenced Antone to

114 months of incarceration, with credit for time served, and 60

months of supervised release. The plea agreement reflected

Antone’s request to receive sex offender treatment in federal

custody, and the district court included a recommendation in its

judgment that Antone participate in the residential drug

treatment and sex offender treatment programs.

B.

In accordance with the federal judgment and commitment

order, Antone was incarcerated in the federal Bureau of Prisons

system from November 1999 through February 23, 2007, when the

Government initiated the instant proceeding four days before his

6
expected release. Since then, Antone has resided in FCI-Butner,

a medium security correctional institution in North Carolina,

awaiting his civil commitment hearing and its resolution. As a

result, Antone has been in continuous federal custody for the

past fourteen years, or since he was twenty-seven years old.

During the entire period of his federal custody, Antone has

not been shown to have consumed alcohol or drugs. Antone’s

prison record contains no sanctions or nonsanctioned incidents

related to alcohol or drugs, and he testified that he has been

sober for fourteen years. The Bureau of Prisons regularly

administers Breathalyzer tests on inmates in recognition of the

fact that it is possible to make and obtain contraband alcohol

within the prison. Antone has never tested positive on those

tests.

Antone has attended Alcoholics Anonymous and Narcotics

Anonymous on his own initiative. He attended meetings during the

first year and a half of his prison term and restarted about a

year before his commitment hearing. He also completed a Drug

Education Program and a non-residential substance abuse program.

Antone’s behavioral problems while in prison have been

minimal. He has been sanctioned for four incidents, twice for

fighting without serious injury and twice for minor rule

7
violations; the last of these sanctions occurred in 2004. 2 He

obtained his GED in 2001. In addition, he has maintained

employment as an orderly in his housing unit. His work

performance therein was characterized as “superior.” J.A. 843.

Antone regularly seeks out advice and counseling from his

prison’s counselors and treatment specialists. In particular, he

has asked his counselors how to communicate with his son, with

whom he corresponds by mail, and for advice on anger management.

Antone has taken classes in art, beading, meditation, and

guitar. He teaches other inmates how to play the guitar.

As for sexual conduct, Antone’s record indicates that he

has “not engaged in sexual misconduct during his extended

incarceration.” J.A. 882. At the time of the evidentiary

hearing, however, he had not attended sex offender therapy or

treatment. Antone and his former attorney testified that he had

made several requests for treatment at the early side of his

incarceration period, but it was apparently not then available

to him because “his release date was so far in the future.” 3 J.A.

2
The Bureau of Prisons records also refer to three events
that did not result in disciplinary sanction. They primarily
stem from the attempted delivery of the magazine Maxim to
Antone, and the presence in Antone’s cell of a number of
pictures, cut out from magazines, of scantily-clad adult women.
3
When asked to explain why he had not completed a sex
offender treatment program at any point during his
incarceration, Antone responded, “I don’t know why. Some places
(Continued)
8
830. When it became available in September 2008, after the

Government filed its § 4248(a) petition, Antone did not

participate in the treatment. He indicated that he did not do so

because he knew that statements made during treatment “could be

used against him” in the commitment proceeding. Id.

C.

On February 23, 2007, four days before Antone’s expected

release date, the Government filed a certification, pursuant to

18 U.S.C. § 4248(a), of Antone as a sexually dangerous person.

The case was originally stayed pending an appeal relating to the

constitutionality of § 4248, see United States v. Comstock, 551

F.3d 274, 276 (4th Cir. 2009) (holding that Congress lacked

authority to implement § 4248), rev’d and remanded, 560 U.S.

126, 130 (2010) (reversing on issue of Congressional authority

but remanding for due process consideration); 627 F.3d 513, 515

(4th Cir. 2010) (subsequently holding that § 4248 satisfies due

process clause), cert. denied, 131 S. Ct. 3026 (2011). In June

2010, Antone filed a motion for a hearing on the merits of the

certification, and the district court referred the matter to a

I went didn’t have the program. . . . I was talking with some
other brothers who are here and they said they were told they
didn’t qualify.” J.A. 1238.

9
magistrate judge for an evidentiary hearing and report and

recommendation.

The magistrate judge held an evidentiary hearing over the

course of three days in October 2011. As will be described in

further detail infra, the Government presented the testimony of

Antone, as well as two expert witnesses; Antone presented the

testimony of a specialist and a counselor at the correctional

facility at which he resided, a United States Probation Officer

from Arizona, and an expert witness. The magistrate judge

admitted the testimony of all three proffered expert witnesses.

On April 30, 2012, the magistrate judge issued his M&R, in

which he recommended that Antone not be found a sexually

dangerous person. The Government thereafter filed a series of

objections to the M&R, to which Antone responded. The Government

also submitted several additional notices of supplemental

authority, including Ninth Circuit case law on the tolling of

supervised release during the pendency of a civil commitment

proceeding.

On September 20, 2012, the district court issued its order

and judgment on the instant certification. Although it accepted

all of the magistrate judge’s credibility determinations and

findings of historical fact, it rejected the M&R’s ultimate

recommendation of a finding of not sexually dangerous. It found

that the combination of Antone’s serious mental illnesses —

10
namely antisocial personality disorder and polysubstance

dependence – would cause him to have serious difficulty in

refraining from sexually violent conduct if released. It

therefore committed Antone to the custody of the United States

Attorney General as a sexually dangerous person. The instant

appeal followed.

II.

A.

The Government seeks the commitment of Antone pursuant to

18 U.S.C. § 4248, which was enacted as part of the Adam Walsh

Child Safety and Protection Act of 2006. Under § 4248, the

Government may seek the civil commitment of certain individuals

in the custody of the Federal Bureau of Prisons who are

determined to be “sexually dangerous person[s].” 18 U.S.C.

§ 4248(d). The commitment process is initiated when the Attorney

General or his designee files a certification attesting that an

individual is sexually dangerous as defined by the Walsh Act,

after which the respondent is entitled to an evidentiary

hearing. “If, after the hearing, the court finds by clear and

convincing evidence that the person is a sexually dangerous

person, the court shall commit the person to the custody of the

Attorney General.” Id.

To demonstrate that an individual should be civilly

committed under § 4248, the Government must prove, by clear and

11
convincing evidence, that each one of the following criteria has

been satisfied: (1) the individual has previously “engaged or

attempted to engage in sexually violent conduct or child

molestation” (the “prior conduct” element), 18 U.S.C.

§ 4247(a)(5); (2) the individual currently “suffers from a

serious mental illness, abnormality, or disorder” (the “serious

illness” element), id. § 4247(a)(6); and (3) as a result of such

a condition, the individual “would have serious difficulty in

refraining from sexually violent conduct or child molestation if

released” (the “serious difficulty” or “volitional impairment”

element), id. See also Comstock, 560 U.S. at 130; United States

v. Springer, 715 F.3d 535, 538 (4th Cir. 2013). Antone has

conceded that the Government has met its burden with regard to

the prior conduct element as well as the finding of a serious

mental illness. He disputes, however, the district court’s

conclusion as to the third element, that the Government has

demonstrated a sufficient likelihood that Antone will re-offend.

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). For the reasons we explain

within, although the district court’s ultimate mixed finding on

volitional impairment is not infected with “clear error” in the

traditional sense of that term, it nonetheless constitutes

reversible error because it is against “the clear weight of the

12
evidence considered as a whole.” United States v. Wooden, 693

F.3d 440, 451 (4th Cir. 2012). Put somewhat differently, we

conclude as a matter of law that the Government failed to

establish by clear and convincing evidence that Antone would, as

a result of his serious illness or condition, have serious

difficulty in refraining from sexually violent conduct if

released.

B.

The standard set forth for civil commitment under § 4248 is

clear and convincing evidence. This so-called “intermediate”

standard is mandated not only by the plain language of the

statute, 18 U.S.C. § 4248(d), but by constitutional due process

constraints, as well. See Addington v. Texas, 441 U.S. 418, 427

(1979) (observing that the clear and convincing evidence

standard is required in civil commitment proceedings because

“[t]he individual’s interest in the outcome of a civil

commitment proceeding is of such [great] weight and gravity”).

When applying the clear and convincing standard, the court

must identify credible supporting evidence that renders its

factual determination “highly probable.” Direx Israel, Ltd. v.

Breakthrough Med. Corp., 952 F.2d 802, 810 n.7 (4th Cir. 1992).

The court must then weigh the evidence and ask whether the

totality of the record “produces in the mind of the trier of

fact a firm belief or conviction, without hesitancy, as to the

13
truth of the allegations sought to be established[.]” United

States v. Heyer, --- F.3d ---, ---, No. 12–7472, 2014 WL 185584,

at *6 (4th Cir. Jan. 17, 2014) (quoting Jimenez v.

DaimlerChrysler Corp., 269 F.3d 439, 450 (4th Cir. 2001));

Springer, 715 F.3d at 538.

In applying the first two commitment criteria under the

Walsh Act, the question is whether the Government has

established with clear and convincing evidence that the

respondent acted or acts in a certain manner. The third element,

however, is more complicated, in that it requires the court to

issue a predictive judgment: has the Government met its burden

by presenting clear and convincing evidence that, in the

uncertain future, the respondent will have “serious difficulty

in refraining from sexually violent conduct or child

molestation”? 18 U.S.C. § 4247(a)(6).

We are mindful that the Supreme Court has explained that

such an inquiry “will not be demonstrable with mathematical

precision.” Kansas v. Crane, 534 U.S. 407, 413 (2002). Instead,

in order to find that the third criterion is satisfied, the

court must look for

proof of serious difficulty in controlling behavior. And
this, when viewed in light of such features of the case as
the nature of the psychiatric diagnosis, and the severity
of the mental abnormality itself, must be sufficient to
distinguish the dangerous sexual offender whose serious
mental illness, abnormality, or disorder subjects him to

14
 civil commitment from the dangerous but typical recidivist
convicted in an ordinary criminal case.

Id. In other words, the Government must demonstrate that the

serious illness, as it has manifested in the particular

respondent, has so significantly diminished his volitional

capacity such that he is distinguishable from the ordinary

“dangerous but typical recidivist.” Id.; see also Wooden, 693

F.3d at 460 (framing the third criterion as “the extent to which

the inmate is controlled by the illness”).

We now assess the instant record with this exacting

standard in mind. As to the third criterion, we find that the

aggregate of historical, direct, and circumstantial evidence

contained therein may be best described (as the magistrate judge

seemed to regard it) as in equipose, or, at most, as rising to a

level of preponderance in favor of commitment. But this is

simply not enough to satisfy the statutory burden of clear and

convincing evidence. See Medtronic, Inc. v. Mirowski Family

Ventures, LLC, 571 U.S. ---, ---, No. 12-1128, 2014 WL 223040,

at *6 (2014) (“[T]he burden of proof . . . [is] part of the very

substance of [the plaintiff’s] claim and cannot be considered a

mere incident of a form of procedure.”) (quoting Garret v.

Moore-McCormack Co., 317 U.S. 239, 249 (1942)). We thus have no

hesitation in finding a fatal evidentiary insufficiency in the

Government’s presentation.

15
 C.

The majority of the evidentiary record consists of reports

and testimony presented at the three-day hearing in front of the

magistrate judge. At the hearing, the Government presented

testimony from Antone himself, and expert witnesses Dr. Amy

Phenix, Ph.D. and Manuel E. Gutierrez, Psy.D. Antone then

presented the testimony of Clement Gallop, a treatment

specialist in the commitment and treatment program at FCI-

Butner; Andre Taylor, a counselor at FCI-Butner; Anne Schauder,

a United States Probation Officer from Arizona; and an expert

witness, licensed psychologist Roy G. Daum, Psy.D. The

magistrate judge found all of the witnesses credible, with a

single exception related to Antone’s account of certain past

crimes.

Because the sole issue on appeal is whether there was

sufficient evidence of Antone’s future volitional impairment, we

summarize the evidence only as it pertains to that issue.

1.

The Government first called respondent Antone. Antone

testified that he was unable to recall the majority of his

sexual assaults because he was either drunk or high at the time

of the incidents. He then testified about his upbringing,

substance abuse, and progress while in prison. He stated that he

would always be an alcoholic and there would always be a risk

16
that he would drink again, but that he knew to stay away from

high risk places and people. He also stated that while in prison

he had learned how to talk to others about his problems and to

“release [his] feelings in a positive way.” J.A. 221.

Subsequently, Antone presented the lay testimony of Clement

Gallop and Andre Taylor. Gallop is employed as a treatment

specialist in the commitment and treatment program at FCI-Butner

and Taylor is a counselor at FCI-Butner. Gallop testified that

he is approached by Antone on a weekly basis, and that they have

discussed issues related to Antone’s son and anger management in

general. Taylor testified that Antone has never tested positive

or been observed to have imbibed alcohol or used drugs, even

though such substances are available in prison and Taylor had

disciplined others for alcohol-related issues. Both Gallop and

Taylor had positive impressions of their interactions with

Antone.

Antone also presented the testimony of Allan Duprey and

Anne Schauder. Duprey, who was Antone’s attorney on the federal

criminal charges, testified that the federal charges were

initiated at his urging so that Antone could have access to sex

offense treatment designed specifically for Native Americans.

Duprey also testified that he had inquired about the

availability of sex offender treatment, but was told by the

Bureau of Prisons that Antone would not receive treatment until

17
the last five years of his ten-year sentence. Schauder is a

United States Probation Officer in the District of Arizona. She

explained the support and supervision that her district provides

to sex offenders, including the utilization of halfway houses,

sex offender treatment, and polygraph tests. 4

2.

The Government also presented the testimony of two expert

witnesses, Dr. Amy Phenix and Dr. Manuel Gutierrez, who were

admitted as experts in the field of forensic psychology without

objection. Both Government experts testified that Antone met the

criteria for civil commitment as a sexually dangerous person.

Their conclusions were based on their review of Antone’s written

records. Dr. Gutierrez was unable to conduct an interview of

Antone, and the portion of Dr. Phenix’s report that related to

an interview she conducted with Antone was excluded by the

magistrate judge and the Government does not challenge that

order.

4
Schauder also testified that on November 3, 2011, the
federal district court in Arizona had added an additional
condition that Antone reside in a halfway house for up to 365
days after release from custody. Antone consented to this
additional condition and executed a written waiver. Antone has,
of course, not yet been before any district court (in Arizona or
in another district should his supervision be transferred) for a
final determination as to the terms of his supervised release,
in light of the fact that he remains in federal custody in North
Carolina subject to the instant § 4248 proceeding.

18
 Dr. Phenix diagnosed Antone with paraphilia not otherwise

specified, nonconsent (“paraphilia NOS, nonconsent”); 5 alcohol

dependence; 6 and antisocial personality disorder (“APD”); 7 and

she testified that as a result, he would have serious difficulty

refraining from sexually violent conduct. She opined that the

primary cause of Antone’s volitional impairment was his

paraphilia NOS, nonconsent, mental illness. Dr. Phenix found

that Antone’s paraphilia NOS, nonconsent, caused him to deviate

from ordinary sexual impulses and behaviors, and then his

alcohol dependence would serve as a disinhibitor and his

antisocial personality disorder would reinforce his paraphilic

impulses. When specifically questioned by the court, Dr. Phenix

added that, even if the paraphilia diagnosis was disregarded,

5
Paraphilia is defined as “recurrent, intense sexually
arousing fantasies, urges and behaviors” involving, in the
context of the “nonconsent” specifier, sexual arousal “by the
nonconsenting aspect of nonconsensual sexual encounters.” J.A.
848-49.
6
Alcohol/substance dependence is defined as a “maladaptive
pattern of substance use, leading to clinically significant
impairment or distress[.]” J.A. 849. There is no dispute that
Antone suffers from substance dependence.
7
Antisocial personality disorder is defined as “an enduring
pattern of inner experience and behavior that deviates markedly
from the expectations of the individual’s culture, is pervasive
and inflexible, has an onset in adolescence or early adulthood,
is stable over time, and leads to distress or impairment.” J.A.
851. At the appellate level, Antone does not challenge the
diagnosis of antisocial personality disorder.

19
she would still “believe that [Antone] will go on to commit

criminal sexual behavior.” J.A. 420.

Dr. Phenix’s conclusion on the volitional impairment prong

was based on (1) the pattern and duration of Antone’s offending;

(2) his commission of additional offenses after his 1991 sexual

abuse conviction; (3) an actuarial assessment of risk based on

static risk factors; (4) the presence of dynamic risk factors;

and 5) the absence of protective factors. Dr. Phenix explained

at the hearing that her first methodology was to “look at the

pattern and duration of his offending to see how well his

behavioral controls were when he was in the community.” J.A.

331. She focused on certain undisputed historical factors,

emphasizing the repeated nature and aggression of Antone’s

assaults and that he continued to commit assaults even after his

first arrest in 1991. 8

Dr. Phenix viewed Antone’s behavior while incarcerated only

as a secondary consideration. When questioned on why she relied

almost exclusively on pre-incarceration conduct, Dr. Phenix

responded that “I think the best measure of his volition is

8
With respect to her actuarial analysis, Dr. Phenix
utilized several predictive models, in which she inputted a
number of “static,” mostly historical facts, including the
number of prior sex offenses; whether the offender was single at
the time of offending; and whether any victims were related to
the offender.

20
prior to being in a prison where you have such strict structure

and rules for your behavior[.]” J.A. 332.

The magistrate judge also heard similar testimony from

Government witness Dr. Gutierrez. Dr. Gutierrez’s diagnoses

matched those of Dr. Phenix - paraphilia NOS, nonconsent;

polysubstance (including alcohol) dependence; and antisocial

personality disorder – and also included an additional diagnosis

of paraphilia NOS, hebephilia. He concluded that a combination

of all of the above-listed illnesses, or alternatively a sole

diagnosis of APD, would “cumulative[ly]” cause Antone to have

serious difficulty refraining from sexually violent conduct.

J.A. 457-58.

Antone subsequently presented the testimony of his expert

witness, Dr. Roy Daum, who was admitted as an expert in the

field of forensic psychology over the Government’s objection.

After conducting a forensic evaluation of Antone in February

2011, Dr. Daum diagnosed Antone with polysubstance dependence;

frotteurism; and borderline personality disorder. 9 He agreed with

9
Notably, Dr. Daum did not diagnose Antone with any form of
paraphilia NOS, be it nonconsent (when an individual is aroused
by nonconsent) or hebephilia (when an individual is aroused by
pubescent individuals). He explained that after interviewing
Antone for five hours, he had not seen any evidence or admission
by Antone — for example, an interest in deviant sexual fantasies
or a physical arousal to certain images — that would suggest
that Antone was aroused by forced sex. Dr. Daum also referred to
a psychophysiological evaluation taken in 1999 in anticipation
(Continued)
21
the Government’s experts that Antone met the first and second

criteria of § 4248 confinement. He disagreed, however, that

Antone had demonstrated that he would have serious difficulty

refraining from sexually violent conduct if released.

Dr. Daum reasoned that Antone’s offense conduct had not

been rooted in sexual deviance, but rather stemmed from a lack

of interpersonal skills and a serious substance abuse. Dr.

Daum’s conclusion considered as a central part of his analysis

certain “dynamic” factors observed during Antone’s

incarceration, including the absence of evidence of any use of

drugs or alcohol or any engagement in antisocial activities; the

absence of records showing that Antone had a general sexual

preoccupation; Antone’s positive management records; and

evidence of his completion of several self-help programs,

learning of vocational skills, and seeking counseling while

incarcerated. Of the difference between his opinion and that of

Dr. Phenix and Dr. Gutierrez, he remarked the following:

of Antone’s federal sentencing. Although the report did not make
a formal diagnosis, it observed that “[i]t is possible that
[Antone’s] sexually aggressive and sexually deviant behavior
patterns are the result of emotional and psychological
disturbance, rather than persistent deviant sexual arousal or
attraction[.]” J.A. 829.

As will be discussed infra, both the magistrate judge and
the district court adopted Dr. Daum’s conclusion that Antone did
not suffer from any form of paraphilia.

22
 I believe there are many factors that you look at as far as
a civil commitment is concerned. Certainly you have heard
the last two days of a lot of discussion about actuarials.
One of the things that is really missing is the dynamic
factors of how that person is now [as compared to his
former] acts. Static, meaning it’s all said and done and
it’s easy to score, . . . but the dynamic factors allow for
the growth of a person to change or it allows for the
person not to change.

J.A. 642. Finally, Dr. Daum opined that outpatient treatment of

Antone during supervised release could adequately address his

sex offense and substance abuse problems.

D.

On April 30, 2012, the magistrate judge issued a

comprehensive M&R recommending that the district court reject

the Government’s certification of Antone as a sexually dangerous

person. The magistrate judge concluded that the Government had

met its burden with regard to the first element, in that Antone

had previously engaged in sexually violent conduct. The

magistrate judge also accepted the Government’s contention that

Antone suffered from certain serious mental illnesses within the

scope of § 4247(a)(6). Specifically, the magistrate judge found

evidence of polysubstance dependence, but it rejected the rest

of the Government experts’ diagnoses, most notably paraphilia

NOS, nonconsent and antisocial personality disorder. It also

rejected Dr. Daum’s diagnoses of frotteurism and borderline

personality disorder.

23
 The magistrate judge ultimately concluded, however, that

the Government had not presented sufficient evidence to

demonstrate that Antone’s polysubstance dependence would result

in a serious difficulty refraining from sexually violent

conduct. The magistrate judge emphasized that the Government’s

position on volitional impairment was “based on [a theory of]

multiple diagnoses,” but it had decided that the Government had

not met its burden on any of those diagnoses except

polysubstance dependence. As a result, the magistrate judge was

not persuaded by the Government’s presentation as to Antone’s

volitional impairment. It cited, for example, to Dr. Gutierrez’s

understanding that “just a substance diagnosis alone could not

essentially stand by itself for civil commitment.” J.A. 881.

The magistrate judge afforded near determinative weight to

Antone’s conduct “over the last 13 or so years,” during his time

in federal prison. It noted that Antone had not been shown to

have consumed alcohol or drugs or to have engaged in sexual

misconduct during his extended incarceration. It also pointed to

his attendance in Alcoholics Anonymous and his eagerness to seek

out counseling for anger management.

The magistrate judge recognized that Antone’s achievements

while incarcerated came about in a controlled environment where

access to his vices was limited. Nevertheless, its review of the

evidence – including the testimony of Dr. Daum, who had stressed

24
the utility of dynamic factors in Antone’s case - led it to

conclude that over the past thirteen years, Antone “has achieved

a level of sexual self-regulation” and “a measure of self-

control” that significantly undercut the Government’s position

that he would have serious difficulty refraining if released.

J.A. 882. It observed that certain evidence relied upon by the

Government’s expert witnesses, such as the nature, pattern, and

duration of offense conduct, “is not as reliable an indicator of

his behavior if released . . . because of, among other reasons,

the extended intervening period in which there was no

manifestation of such conduct.” J.A. 884-85.

The magistrate judge also considered as “significant[]” the

fact that Antone would be subject to “an extended term of

supervised release.” J.A. 883. It noted that he would spend his

first year of supervised release in a halfway house and that

throughout his term, he would be subject to supervision and

participation in substance abuse and sex offender treatment

programs, periodic drug tests, and prohibitions against contact

with children.

In light of the “paucity” of evidence that Antone would

have serious difficulty refraining from sexually violent conduct

if released, the magistrate judge concluded that the Government

had failed to meet its burden of establishing, by clear and

25
convincing evidence, that Antone was a sexually dangerous person

under § 4248. J.A. 886.

E.

On September 24, 2012, the district court issued an order

rejecting the magistrate judge’s ultimate recommendation and

civilly committing Antone. It accepted the M&R’s findings of

historical fact and witness credibility, and noted that it

reviewed de novo those aspects of the M&R that were objected to

by the parties.

In applying the three-prong test, the district court first

accepted the magistrate judge’s conclusion that the Government

had established that Antone had engaged in sexually violent

conduct. It also agreed with the majority of the magistrate

judge’s recommendations as to the diagnoses of Antone’s mental

illnesses. Notably, the district court found that Antone

suffered from polysubstance dependence and that he did not

suffer from paraphilia NOS, nonconsent. In disagreement with the

magistrate judge, however, the district court found sufficient

evidence of a diagnosis of antisocial personality disorder and

held that these two diagnoses, as manifested in Antone,

qualified as serious mental illnesses.

The district court then found that the Government had

satisfied the volitional impairment requirement of § 4248. In

26
doing so, its primary focus appeared to be Antone’s admitted

alcoholism. It stated:

Respondent admits that he is and will always be an
alcoholic. To his credit, respondent has participated in
substance abuse treatment and evidently has refrained from
using alcohol and drugs while incarcerated. . . .
[However,] the risk that respondent will relapse into
abusing alcohol and other substances would be much higher
in the community.

J.A. 1115-16. It continued, “[t]he court is convinced that if

respondent uses alcohol he will have serious difficulty stopping

himself from sexually attacking persons he finds desirable,

despite their nonconsent.” J.A. 1116.

The district court looked to the combination of Antone’s

substance dependence and APD diagnoses to predict that his past

history of sexual attacks would continue once released. “This

volitional impairment has resulted in a consistent pattern of

numerous violent sexual attacks in the past, and the court finds

that the impairment will persist if respondent is released.” Id.

The court also relied on Dr. Phenix’s testimony that her

conclusion on the volitional impairment prong would not change

without the paraphilia NOS, nonconsent diagnosis.

Finally, the court expressed concern that it would not be

able to require Antone to undergo sex offender treatment. All

parties – including Dr. Daum as well as Antone himself – agreed

that Antone would benefit from sex offender treatment. According

to the district court, however, under a recent Ninth Circuit

27
case, United States v. Turner, a § 4248 detainee’s term of

supervised release is not tolled while he remains in custody

awaiting a commitment hearing. 689 F.3d 1117, 1121 (9th Cir.

2012). Assuming Antone’s period of supervised release actually

had begun when he was due to be released from the Bureau of

Prisons, supervision would have ended on February 27, 2012, but

he was still civilly committed at that point. The district court

thus predicted that without a tolling mechanism, Antone would

not be subject to any term of supervised release under Ninth

Circuit law. It also rejected as “irrelevant” the testimony of

the probation officer from Arizona based on similar reasoning.

Accordingly, the district court rejected the magistrate

judge’s ultimate recommendation, instead finding that the

Government had established that Antone was a sexually dangerous

person within the meaning of 18 U.S.C. § 4247(a)(5) and (6).

F.

Because Antone has not disputed the first and second

elements of the Government’s § 4248 certification, the sole

issue on appeal is whether the district court erred in finding

that he will have serious difficulty refraining from sexually

violent conduct if released. We hold that it did.

Under the clear error standard, we may not reverse the

district court’s holding even if we are “convinced that had we

been sitting as the trier of fact, we would have weighed the

28
evidence differently.” Springer, 715 F.3d at 545 (internal

citations omitted). Yet “while clear-error review is

deferential, it is not toothless.” Wooden, 693 F.3d at 451

(internal citations omitted). A reversal is warranted, for

example, if the district court failed to “properly tak[e] into

account substantial evidence to the contrary” or its “factual

findings are against the clear weight of the evidence considered

as a whole.” Id. at 462. We may then reverse if, upon reviewing

the district court’s ultimate mixed findings, we are “left with

the definite and firm conviction that a mistake has been

committed.” Id. at 451.

That is precisely what is at stake here: our review of the

lower court opinion leads us to conclude that the district

court’s inadequate consideration of certain “substantial

evidence” – namely Antone’s behavior in the past fourteen years

or so – constitutes reversible error. And our subsequent

analysis of the evidentiary record leaves us with a definite and

firm conviction that Antone’s commitment should be reversed.

That Antone has “responded very well” to incarceration is

not in dispute. J.A. 333. Antone has not tested positive for any

substances while in prison, and he testified that he has been

sober during his extended incarceration. Antone’s conduct as it

relates to sexual deviance is equally commendable. Not only has

he not engaged in any actual sexual misconduct or hostility

29
toward women, but, just as importantly, his record is devoid of

any indication that he has even desired to manifest such

misconduct.

Instead, Antone has presented significant testimony to the

contrary. Two employees from the correctional facility testified

on Antone’s behalf, and the magistrate judge found credible

their assurances that their interactions with Antone have been

consistently positive and that he has demonstrated self-

awareness and control on a regular basis. He has for the most

part avoided conflicts with superiors or fellow inmates. Antone

has completed his GED, as well as other professional programs,

and he readily seeks out the prison’s mental health resources.

He has expressed remorse for his past acts.

Yet the district court’s discussion of Antone’s behavior

while incarcerated is negligible at best. It failed to discuss

the opinions of Gallop or Taylor, the only witnesses who have

had consistent contact with Antone since his incarceration. It

considered the testimony of Antone only to the extent that he

admitted that he will always be an alcoholic. 10 And it failed to

10
To the contrary, we note that Antone’s admission that he
will always struggle with alcohol is a crucial and necessary
step in his path toward recovery from substance abuse. See The
Twelve Steps of Alcoholics Anonymous, available at
http://www.aa.org/en_pdfs/smf-121_en.pdf (stating that the first
step in addressing addiction is accepting that a problem exists)
(last visited January 31, 2014).

30
mention the nearly ten-year period in which Antone has had zero

disciplinary infractions and the nearly fifteen-year period in

which Antone has had no sex-related incidents.

In fact, in the “serious difficulty” section of its

opinion, the district court’s analysis of Antone’s conduct while

incarcerated is limited to a single sentence acknowledging his

“evident[]” abstinence from alcohol. 11 Relying again on Antone’s

past history of “numerous violent sexual attacks,” it concluded

that his volitional impairment would persist if released.

Since upholding the constitutionality of the Walsh Act in

2010, we have disposed of more than a handful of § 4248 appeals

involving the volitional impairment prong, but none of them

involved a respondent who had demonstrated such positive

behavior during the extended period of his incarceration. In

each of those cases, the district court referred to some

negative aspect of the respondent’s recent (that is, during-

11
That portion of the district court opinion reads, in
total,

Respondent admits that he is and always will be an
alcoholic. To his credit, respondent has participated in
substance abuse treatment and evidently has refrained from
using alcohol and drugs while incarcerated. Although
alcohol and drugs are certainly present where respondent is
housed, they are contraband, and their availability is
considerably limited compared to the access respondent
would have to such substances if he were to be released.

J.A. 1115 (emphasis added).

31
incarceration or post-release) behavior. In United States v.

Bolander, 722 F.3d 199, 204 (4th Cir. 2013), for example, we

affirmed the commitment of a respondent who stole pornographic

materials from the treatment lab while incarcerated and

collected child pornography while on supervised release.

Likewise, in United States v. Wooden, 693 F.3d at 445, the

respondent had written a letter to one of his previous victims,

and we concluded that he had serious volitional impairment

issues. See also United States v. Heyer, --- F.3d at ---, 2014

WL 185584, at *2-3, 9 (noting respondent’s admission of “ongoing

sexual interest in children,” including showing child

pornography to a teenage boy while on probation).

Even those cases in which the respondent was ultimately

found not to qualify for commitment nevertheless involved some

evidence of negative behavior during incarceration. In United

States v. Hall, 664 F.3d at 464, the district court considered

the respondent’s ongoing interest in collecting pictures and

drawings of children and adolescents while in custody and his

report that he often masturbated to memories of his child

victims, but it ultimately concluded that due to his abstention

from hands-on offenses during his twenty-eight months of

release, he was not sexually dangerous under § 4248; we affirmed

the judgment. See also United States v. Francis, 686 F.3d 265,

271 (4th Cir. 2012) (considering respondent’s perceived

32
hostility toward women and his noncompliance with supervised

release, but affirming denial of government’s commitment

petition).

Here, Antone’s behavior during the past fourteen years –

indeed, during a period of time that spans the majority of his

adult life – reveals no acts that conceivably come close to the

sort of malfeasance present in our aforementioned precedent. 12 On

these facts, there is not much more that he could have done to

demonstrate that he is in control of his volitional faculties

and that such control is likely to persist after his release.

The district court should have been aware of the uniqueness of

Antone’s factual record. As such, it was imperative for the

12
The district court made reference to the fact that Antone
had not attended sex offender treatment. Antone had, however,
repeatedly sought this treatment at the beginning of his
incarceration to no avail. It is true that he was eventually
offered sex offender treatment sometime in September 2008, but
this choice was effectively no choice at all. At that point, the
Government was proceeding with its efforts to civilly commit
Antone, and any treatment received would be at the cost of
providing the Government with additional fodder to use against
him in those proceedings.

The district court also noted that Antone’s institutional
conduct “has not been without incident.” J.A. 1114. It cited to
his two sanctions for fighting, both of which occurred before
2004, and the presence of “inappropriate materials” in his cell.
We reject the notion that the prison’s confiscation of the
magazine Maxim can rise to the level of malfeasance discussed
above.

33
court to comprehensively address why it believed Antone’s recent

behavior was overshadowed by his past acts. It failed to do so.

In Wooden, we recently confronted a situation in which we

believed that the district court had failed to consider relevant

and substantial evidence of a respondent’s volitional

impairment. 693 F.3d at 458-62. There, the district court had

rejected the petition for civil commitment, finding that the

Government had failed to demonstrate clear and convincing

evidence that the respondent would have serious difficulty

refraining from re-offending. Our review of the evidentiary

record led us to hold otherwise. Because the district court

relied on a flawed expert opinion and ignored or otherwise

failed to account for a “substantial body of contradictory

evidence,” we found reversible error. Id. at 461.

Here, as in Wooden, we have again been “left with the

definite and firm conviction that a mistake has been committed.”

Id. The “core” of Antone’s case was his decade-long process of

rehabilitation. Antone called three separate witnesses to

support his position that, as a result of his efforts to obtain

treatment, he had improved his ability to control his impulses.

The district court’s one-sentence dismissal of Antone’s case in

chief does not sufficiently address the valid and important

evidence contained therein.

34
 We hasten to note that it was not clearly erroneous for the

district court to place significant weight on Antone’s pre-

incarceration acts and behavior in reaching its predictive

finding. A respondent’s criminal record “may well be a

historical factor, but it is by no means a stale or irrelevant

one. When the question is whether an inmate . . . will have

serious difficulty refraining from re-offending if released,

consideration of the nature of his prior crimes provides a

critical part of the answer.” Wooden, 693 F.3d at 458. Rather,

the deficiency here lies primarily in the Government’s failure

to muster, and the district court’s failure to hold the

Government to its obligation to muster, sufficient evidence of

an ongoing volitional impairment in this case. The mixed finding

that ensues is “against the clear weight of the evidence

considered as a whole” and constitutes reversible error.

As both the magistrate judge and Dr. Daum recognized, in

analyzing whether a respondent will have serious difficulty

refraining from re-offending, one must look to his past and his

present condition. Here, Antone has presented significant

indicators that he presently “has problems, takes responsibility

for them, and seeks help for them,” and his pre-incarceration

malfeasance cannot be the sole relevant factor of consideration.

J.A. 883. We certainly do not fault the Government, as whatever

evidence it had, it presented, but that evidence largely (and

35
certainly equally) serves to bolster Antone’s asserted

rehabilitation and his subsequent capacity for volitional

control.

The Government contends that the district court amply

justified its conclusion by relying on the testimony and reports

of its expert witness Dr. Phenix. 13 It is true that Dr. Phenix

opined that Antone met the volitional impairment prong, and we

are “reluctant to set aside a finding based on the trial court’s

evaluation of conflicting expert testimony.” Hendricks v. Cent.

Reserve Life Ins. Co., 39 F.3d 507, 513 (4th Cir. 1994). Yet we

cannot unreservedly accept the district court’s election to give

determinative weight to Dr. Phenix’s opinions, and for two

reasons.

First, Dr. Phenix’s conclusion as to whether Antone would

have serious difficulty in re-offending was based on multiple

diagnoses (including, most importantly, paraphilia NOS,

nonconsent) that were subsequently rejected by the magistrate

judge and the district court. Indeed, Dr. Phenix testified that

Antone’s “paraphilic disorder is primarily responsible for so

many incidents of nonconsenting sexual activity and child

13
The district court did not state that it relied on Dr.
Gutierrez’s report or testimony for its conclusion on the third
prong, and we agree that Dr. Gutierrez’s statements do not give
rise to clear and convincing evidence of volitional impairment.

36
molest[ation],” and that her other two diagnoses, substance

dependence and antisocial personality disorder, served as a

“contributor” or “permission giver.” J.A. 318, 325. But the

district court concluded that Antone did not suffer from

paraphilia, the primary diagnosis supporting Dr. Phenix’s

conclusions. The fact that the court rejected Dr. Phenix’s

paraphilia diagnosis significantly minimizes the amount of

persuasive force retained by her opinion as to Antone’s

volitional impairment. 14

Second, and more fundamentally, Dr. Phenix’s evaluation of

Antone suffers from the same flaw as the conclusion ultimately

put forth by the district court. The expert report submitted by

Dr. Phenix focuses almost exclusively on events that occurred

prior to 1997; indeed, she admitted as much during her

testimony. Dr. Phenix explained that her decision to focus on

pre-incarcerative acts stemmed from her belief that actions

taken while in the outside world are more accurate predictors of

14
When specifically questioned on her thoughts on
commitment without her paraphilia diagnosis, Dr. Phenix did
opine that she would still consider Antone to be a sexually
dangerous person. She clarified that this was because she
“believe[d] that he will go on to commit criminal sexual
behavior.” J.A. 420. Dr. Phenix’s analysis of future criminality
is not the legal inquiry at stake in § 4248 commitment, which
looks instead to an individual’s volitional control. For this
reason, this statement is insufficient to meet the Government’s
heightened burden.

37
future behavior upon release. That is, of course, her choice,

but as it relates to our review of the evidentiary record, it

will not carry the day. The district court should have at the

very least explained why it found Dr. Phenix’s unadorned

conclusion more persuasive than that of Dr. Daum, who

specifically critiqued the former’s technique because it did not

allow for a respondent’s subsequent growth. We find that Dr.

Phenix’s conclusion on volitional impairment is insufficient to

satisfy the Government’s heightened clear and convincing

evidence burden. Cf. Wooden, 693 F.3d at 457 (finding that the

“many deficiencies” in an expert’s testimony “leave us firmly

and definitely convinced that the district court’s factual

findings were mistaken.”).

The Government next contends that the district court’s

consideration of Antone’s recent behavior was sufficient because

it explicitly adopted the magistrate judge’s factual findings

and credibility determinations related to the lay witness

testimony. We reject this argument. Even though the district

court acknowledged its awareness of the testimony, that by

itself does not indicate to us that it adequately considered its

impact. If, after reading the opinion, we cannot understand how

the district court came to its conclusions, then we will be

unable to perform a cogent analysis on its merits.

38
 Factfinding is “a dynamic, holistic process that

presupposes for its legitimacy that the trier of fact will take

into account the entire record before it.” Taylor v. Maddox, 366

F.3d 992, 1007 (9th Cir. 2004). When “the court’s account of the

evidence is not plausible in light of the record viewed in its

entirety,” then it is not entitled to deference upon our review.

Wooden, 693 F.3d at 460. Here, the district court disposed of

more than a decade of evidentiary data points in a single

sentence, and we cannot find that it properly took into account

all substantial evidence.

Nor can we, on the merits of the matter, find that the

Government presented clear and convincing evidence that Antone

will have serious difficulty refraining from re-offending if

released. The Supreme Court has stated that the serious

difficulty element is intended to distinguish the “dangerous

sexual offender” from the “dangerous but typical recidivist

convicted in an ordinary criminal case who, having been

convicted and punished for one crime, proceeds through his own

free choice to commit another.” Kansas v. Crane, 534 U.S. at

413. Here, then, the Government must demonstrate that Antone’s

particular manifestation of his mental illnesses are so severe

and controlling as to deprive him of his liberty for an

indeterminate future.

39
 That is not the case. Clear and convincing evidence equips

a factfinder with “a firm belief or conviction, without

hesitancy,” of the truth of the matter asserted, and, on the

record before us, we possess no such conviction about the grip

strength of Antone’s mental illness on his behavior. Springer,

715 F.3d at 538. We have already cited the substantial evidence

in the record indicating that Antone has developed a level of

general and social self-regulation; indeed, on these facts, we

are hard-pressed to suggest much else that he could possibly do

to undercut the notion that he would have serious difficulty in

restraining from re-offending. What’s more, Antone’s civil

commitment is based on two mental disorders that are

undisputedly prevalent in the nationwide prison population. 15

See, e.g., Kansas v. Crane, 534 U.S. at 412; see also Jack

Vognsen & Amy Phenix, Antisocial Personality Disorder is Not

15
In Kansas v. Crane, the Supreme Court recognized the
“constitutional importance of distinguishing a dangerous sexual
offender subject to civil commitment from other dangerous
persons who are perhaps more properly dealt with exclusively
through criminal proceedings.” 534 U.S. at 412. In fact, in
making this precise point, the Court cited to the wide
prevalence of antisocial personality disorder among inmates -
one of the two mental illnesses at issue in the instant case.

In his brief, Antone has contended that the language in
Crane supports his position that it is unconstitutional to
commit individuals under § 4248 who do not suffer from a
paraphilia. Because we hold that, on the evidentiary record
before us, Antone has not been shown to be a sexually dangerous
person, we do not reach this question.

40
Enough: A Reply to Sreeivasan, Weinburger, and Garrick, 32 J.

Am. Acad. Psychiatry Law 440, 442 (2004) (J.A. 1035-37) (noting

that 50 to 70 percent of the ordinary prison population suffers

from antisocial personality disorder); Dept. of Justice, Bureau

of Justice Statistics, Christopher J. Mumola & Jennifer C.

Karberg, Drug Use and Dependence, State and Federal Prisoners,

2004 1 (2004), available at

http://www.bjs.gov/content/pub/pdf/dudsfp04.pdf (finding that 45

percent of federal prisoners met DSM-IV criteria for drug

dependence or abuse) (last visited January 31, 2014). We

conclude that, under the clear and convincing evidence standard,

the Government has failed to distinguish Antone’s alleged

volitional impairment from that of a “dangerous but typical

recidivist.” Kansas v. Crane, 534 U.S. at 413.

G.

Finally, we turn to the issue of Antone’s supervised

release. The district court’s position seems to be that, if

Antone were to contest the terms of his supervised release in

front of his sentencing court in Arizona, then the sentencing

court would be bound by Ninth Circuit law and hold that his

supervised release expired in February 2012. See United v.

Turner, 689 F.3d at 1121 (holding that civil detention under the

Walsh Act does not toll supervised release). On appeal, Antone

contends that the district court erred as a matter of law

41
because it failed to consider the possibility that he would be

judicially estopped from challenging his expressly-agreed-to

supervised release in the course of this civil commitment

litigation.

As we hold that the evidence in this record is insufficient

under the clear and convincing standard to support the district

court’s predictive judgment of Antone’s volitional impairment,

we need not wade into this legal issue at this time, nor do we

find any reason to do so. Antone has given no indication that he

will challenge his status as a supervised releasee under the

judgment of the Arizona district court, and it is therefore

premature to anticipate that Turner will even be invoked in

front of the sentencing judge. Indeed, it is our understanding

that the sentencing judge has accepted a recommendation by joint

agreement (signed by Antone) that imposes as an additional

condition of his supervised release a 365-day term in a halfway

house upon his release from federal custody. Whether this

modification changes the application of Turner is for the

district court in Arizona (or another federal district court

should Antone’s supervision be transferred) to decide, not this

court or the North Carolina district court. 16

16
As for judicial estoppel, it, too, is prematurely in
front of this panel. Antone has not at this point “adopt[ed] a
position that is inconsistent with a stance taken in prior
(Continued)
42
 At oral argument before us, counsel for Antone reported

that Antone is currently attending sex offender therapy. 17 One

can only be encouraged by Antone’s commitment to self-

improvement, rehabilitation, and recidivism prevention.

III.

For the reasons set forth, we conclude that the appellate

record does not support the district court’s determination that

Antone would have serious difficulty refraining from sexually

violent conduct if released. It may be that we would affirm the

judgment were the Government’s burden one of a mere

preponderance, but it is not and we do not. The Government has

not established by clear and convincing evidence that the facts

and circumstances of this case establish that Antone is a

sexually dangerous individual subject to commitment under

litigation,” and the Government has not invoked the defense of
judicial estoppel. See generally Zinkand v. Brown, 478 F.3d 634,
638 (4th Cir. 2007). However, if the tolling issue does
ultimately come before a federal district court, the court will
surely consider the relevance of Antone’s consistently expressed
intent to complete his term of supervised release upon his
release from the Bureau of Prisons.
17
We note that Antone has been attending sex offender
therapy in spite of its potential impact on future civil
commitment hearings. See generally Jeslyn A. Miller, Comment,
Sex Offender Civil Commitment: The Treatment Paradox, 98 Cal. L.
Rev. 2093, 2115 (2010) (explaining that “[e]verything that an
offender confesses during these multiple stages of treatment -
including sexual fantasies, uncharged offenses, and gruesome
details regarding sexual offenses - is discoverable.”).

43
§ 4248. Accordingly, we reverse the judgment of the district

court and remand the matter to the district court with

instructions to dismiss the petition. The mandate shall issue

forthwith.

REVERSED AND REMANDED WITH INSTRUCTIONS;
MANDATE TO ISSUE FORTHWITH

44