United States v. Robert Arrington

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-6159

UNITED STATES OF AMERICA,

Petitioner - Appellee,

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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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