UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 12-6838

UNITED STATES OF AMERICA,

 Petitioner – Appellee,

v.

DAVID ARLON SIMPSON,

 Respondent - Appellant.

Appeal from the United States District Court for the Eastern 

District of North Carolina, at Raleigh. W. Earl Britt, Senior

District Judge. (5:09-hc-02075-BR-JG)

Submitted: June 24, 2013 Decided: July 5, 2013

Before KING, AGEE, and WYNN, 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Affirmed by unpublished per curiam opinion.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, Michael G. James, 

Jennifer May-Parker, Assistant United States Attorneys, Raleigh, 

North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

This matter arises under the Adam Walsh Child 

Protection and Safety Act, 18 U.S.C.A. §§ 4247-4248 (West 2000 & 

Supp. 2011) (the Walsh Act). The Walsh Act “provides that 

individuals in the custody of the Bureau of Prisons (BOP) who 

are sexually dangerous may be committed civilly after the 

expiration of their federal prison sentences.” United States v. 

Francis, 686 F.3d 265, 268 (4th Cir. 2012). Here, David A. 

Simpson appeals the district court’s order, following a hearing, 

committing him to the custody and care of the Attorney General 

pursuant to § 4248. We affirm.

I

Simpson first claims that § 4248 violates the Equal 

Protection Clause by limiting its application to prisoners and 

that the statute also constitutes cruel and unusual criminal 

punishment. He acknowledges, however, that our decision in 

United States v. Timms, 664 F.3d 436 (4th Cir.), cert. denied, 

133 S. Ct. 189 (2012), forecloses this argument. In Timms, we 

held that § 4248 did not deprive “Timms and other 

similarly-situated individuals in BOP custody of equal 

protection of the laws,” id. at 449, and that § 4248 is civil—

not criminal—in nature, id. at 456. We accordingly conclude 

that Simpson’s claim lacks merit.
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II

Civil commitment under the Walsh Act is authorized

only if the Government satisfies a three-pronged test. Under 

this test, the Government must establish by clear and convincing 

evidence that the individual:

(1) previously engaged or attempted to engage in 

sexually violent conduct or child molestation (the 

prior conduct prong); (2) currently suffers from a 

serious mental illness, abnormality, or disorder (the 

serious mental illness prong); and (3) as a result of 

that mental condition, the individual would have 

serious difficulty in refraining from sexually violent 

conduct or child molestation if released (the 

volitional conduct prong). 

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

(internal quotation marks omitted); see 18 U.S.C. 

§ 4247(a)(5)-(6). “If the [G]overnment fails to meet its burden 

on any of the three prongs, an individual may not be committed.” 

Springer, 715 F.3d at 538.

In this appeal, Simpson challenges only the district 

court’s finding that the Government met its burden with respect 

to the volitional conduct prong. In particular, Simpson points 

to his low scores on static actuarial tests designed to measure 

recidivism. In its commitment order, the district court 

acknowledged the low scores but gave them less weight than that 

afforded both Simpson’s past and recent conduct and the entirety 

of expert witness testimony. We review the district court’s 
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factual findings for clear error and its legal conclusions de 

novo. Springer, 715 F.3d at 545. 

With respect to the actuarial tests, we have observed 

that such models:

only gauge a risk of recidivism based upon the 

statistics of the particular group of sex offenders 

selected for comparison. . . . Knowing the recidivism 

rate of a particular group does not mean that the 

individual under consideration poses the same chance 

of recidivism in the same time frame; his risk could 

be higher or lower than that of the group based upon 

the unique circumstances of his case. . . . 

Accordingly, experts using these risk-assessment 

models also consider dynamic factors such as the age 

of the particular offender, his participation in 

treatment, his compliance with such treatment, his 

history of reoffending after treatment, and his 

commitment to controlling his deviant behavior.

United States v. Wooden, 693 F.3d 440, 448 (4th Cir. 2012) 

(internal quotation marks, citations and alterations omitted). 

In concluding that the Government had met its burden 

with respect to the volitional prong, the district court 

credited the opinions of Dr. Demby and Dr. Arnold, who agreed 

that despite low actuarial scores, Simpson would have serious 

difficulty in refraining from child molestation. Among other 

things, Dr. Demby and Dr. Arnold pointed to Simpson’s history of 

child molestation dating at least from 1976, his abusing 

children while undergoing court-ordered sex offender treatment, 

his attitude condoning sexual activity with children, and his 

relatively recent conduct reflecting ongoing preoccupation with 
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pedophilia. We discern no error in the district court’s finding 

that the Government established the volitional prong by clear 

and convincing evidence.

III

We accordingly affirm. We dispense with oral argument 

because the facts and legal contentions are adequately presented 

in the material before the court and argument would not aid the 

decisional process. 

AFFIRMED