PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 13-6043

UNITED STATES OF AMERICA,

Petitioner - Appellee,

v.

JOSE DE LA LUZ PEREZ,

Respondent - Appellant.

Appeal from the United States District Court for the Eastern 

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

District Judge. (5:11-hc-02015-BR-JG)

Argued: January 28, 2014 Decided: May 15, 2014

Before TRAXLER, Chief Judge, and MOTZ and THACKER, Circuit 

Judges.

Affirmed by published opinion. Chief Judge Traxler wrote the 

opinion, in which Judge Motz and Judge Thacker joined.

ARGUED: Jenna Turner Blue, BLUE, STEPHENS & FELLERS, LLP, 

Raleigh, North Carolina, for Appellant. Matthew Fesak, OFFICE 

OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for 

Appellee. ON BRIEF: Thomas G. Walker, United States Attorney, 

R.A. Renfer, Jr., Edward D. Gray, Assistant United States 

Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North 

Carolina, for Appellee.
2

TRAXLER, Chief Judge:

Jose De La Luz Perez appeals from an order of the district 

court concluding after an evidentiary hearing that Perez is a 

“sexually dangerous person,” 18 U.S.C. § 4248(a), under the Adam 

Walsh Child Protection and Safety Act of 2006 (the “Act”), Pub. 

L. No. 109–248, 120 Stat. 587, and committing him to the custody 

of the United States Attorney General. Perez asks us to vacate 

the civil commitment order, contending that the district court 

lacked personal jurisdiction because the government failed to 

serve him with a summons pursuant to Rule 4 of the Federal Rules 

of Civil Procedure. Alternatively, Perez argues that the 

district court’s finding that he is a “sexually dangerous 

person” under the Act was clearly erroneous. As explained 

below, we affirm.

I.

Under the Act, the government has the authority to civilly 

commit “sexually dangerous” federal inmates following the 

expiration of their federal prison sentences. 18 U.S.C. § 

4248(a); see United States v. Wooden, 693 F.3d 440, 442 (4th 

Cir. 2012). The statute defines a “sexually dangerous person” as 

one “who has engaged or attempted to engage in sexually violent 

conduct or child molestation and who is sexually dangerous to 

others.” 18 U.S.C. § 4247(a)(5). A person is considered 

“sexually dangerous to others” if “the person suffers from a 
3

serious mental illness, abnormality, or disorder as a result of 

which he would have serious difficulty in refraining from 

sexually violent conduct or child molestation if released.” Id.

§ 4247(a)(6) (emphasis added).

The Attorney General or the Director of the Bureau of 

Prisons (“BOP”) may commence a § 4248 commitment proceeding by 

filing with the clerk of court for the district in which the 

respondent is confined a certification that the person is 

sexually dangerous as defined by the Act. See id. § 4248(a). 

The “filing automatically stays the release of the person from 

custody pending a hearing before the district court.” United 

States v. Heyer, 740 F.3d 284, 286 (4th Cir. 2014); see 18 

U.S.C. § 4248(a). The district court is then “required to 

convene a hearing to afford the government the opportunity to 

prove the ultimate truth of its certification.” United States 

v. Caporale, 701 F.3d 128, 131 (4th Cir. 2012); 18 U.S.C. § 

4248(a) (“The court shall order a hearing to determine whether 

the person is a sexually dangerous person.” (emphasis added)). 

“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.” 18 U.S.C. § 4248(d) (emphasis added). 
4

II.

In December 2011, Perez was incarcerated at the BOP

facility in Butner, North Carolina, where he was serving the 

final few months of a 20-year federal sentence for (1) 

transportation of a minor in foreign commerce with intent to 

engage in criminal sexual activity, see 18 U.S.C. § 2423(a), and 

(2) importation of an alien for immoral purposes, see 8 U.S.C. § 

1328. On January 6, 2011, the BOP Certification Review Panel 

filed in the Eastern District of North Carolina a certification 

seeking to have Perez civilly committed as a “sexually dangerous 

person.” 18 U.S.C. § 4248(a). Perez subsequently moved to 

dismiss the commitment proceedings on the basis that the 

government failed to comply with Rule 4(c)(1) of the Federal 

Rules of Civil Procedure by failing to serve a summons. The 

United States filed a response in opposition to Mr. Perez’s 

motion, arguing that § 4248 only requires the filing of a 

certification to initiate commitment proceedings, not a standard 

civil summons. The United States argued, in the alternative, 

that Perez’s service of process argument was barred by Rule 

12(h)(1) because he failed to raise it in a prior motion that 

addressed other procedural issues. The district court denied 

the motion to dismiss on slightly different grounds, concluding 

that even if service of the summons was required here, dismissal 

was not mandatory where, as here, Perez received actual notice 
5

of the § 4248 proceeding and suffered no prejudice from the 

government’s failure to serve him with a summons.

As mandated by the Act, the district court conducted an 

evidentiary hearing “to determine whether [Perez was] a sexually 

dangerous person.” 18 U.S.C. § 4248(a). Any person subject to 

a hearing pursuant to the Act “shall be represented by counsel” 

and “shall be afforded an opportunity to testify, to present 

evidence, to subpoena witnesses on his behalf, and to confront 

and cross-examine witnesses who appear at the hearing.” 18 

U.S.C. § 4247(d); see id. § 4248(c) (“The hearing shall be 

conducted pursuant to the provisions of section 4247(d).”). 

Perez moved to proceed pro se, and the court found that Perez 

knowingly and voluntarily elected to appear without legal 

counsel. Believing that the proceedings against him were 

unlawful, however, Perez refused to be present or otherwise 

participate in the hearing. Accordingly, the hearing was 

conducted in Perez’s absence. 

The government presented the expert testimony of three 

forensic psychologists who each performed a pre-hearing 

evaluation of Perez for the purpose of determining whether he 

was a “sexually dangerous person” under the Act: Dr. Hy 

Malinek, a forensic psychologist who has evaluated hundreds of 

individuals in § 4248 commitment proceedings; Dr. Heather Ross, 

also a forensic psychologist specializing in the assessment of 
6

sex offenders; and Dr. Joseph Plaud, a forensic psychologist who 

was appointed on behalf of Perez. See 18 U.S.C. § 4247(b). All 

three experts prepared written reports stating their opinions 

and summarizing the bases for their opinions. 

In making their assessments, all three experts reviewed 

Perez’s criminal history records which established the 

following. In September 1970, Perez was arrested for abducting 

a seven-year-old boy at a laundromat in San Antonio, Texas. 

Perez drove the boy to a motel where he held the boy overnight 

and forced him to engage in oral sodomy numerous times. The 

next morning, Perez dropped the boy off in the street fifteen 

blocks away from his home. Perez was convicted in Texas state 

court of kidnapping a minor from his parents and sentenced to 25 

years imprisonment. See Perez v. State, 478 S.W.2d 551 (Tex.

Crim. App. 1972). He was released on parole in May 1979.

In May 1982, Perez made sexual contact with a nine-year-old 

boy in a dressing room at a mall. The boy’s mother reported the 

incident to a security officer who then returned with the boy to 

the dressing room and found Perez victimizing a twelve-year-old 

boy. The nine-year-old victim identified Perez as the molester. 

In each case, Perez approached the boy and offered him money to 

try on jeans, suggesting that they were the same size as Perez’s 

nephew, for whom Perez was shopping. Each victim fell for 

Perez’s ruse, and Perez entered the dressing room with them and 
7

asked how the jeans fit. Eventually, Perez put his hands down 

the boys’ pants and felt their genitals, patted their buttocks, 

and asked them to bend over and touch their toes.

Perez was arrested at the time of the offense in May 1982. 

After being placed on bond, Perez fled and evaded detection for 

several years. He was eventually apprehended in March 1987. 

The charge involving the mall dressing room molestation was 

dismissed because the nine-year old victim could not be located, 

but Perez was convicted under Texas law in November 1987 of 

indecency with a child in relation to the twelve-year-old 

victim. The charge also alleged that Perez had one prior felony 

conviction for enhancement purposes. Perez was sentenced to 

five years’ imprisonment in Texas. He was paroled in February 

1989 and was discharged from parole in August 1992.

During the time that he was a fugitive from charges 

relating to the mall incident in 1982, Perez was convicted of 

indecency with a child and sentenced to five years of probation 

in March 1983 in Texas. This offense, which occurred 

approximately six months after the offense in the mall, took 

place as Perez was selling subscriptions door-to-door and 

noticed a young boy in a woman’s apartment. After making a sale 

to her, Perez left but returned a short time later, asking to 

use the telephone. While he was on the telephone, the woman 

told her ten-year-old son to take the trash out to the dumpster 
8

in the parking lot. Perez followed the boy into the parking 

lot, where he pinched and rubbed the child’s buttocks, touched 

him on the front of his pants, and told him to unzip his pants. 

The victim was instructed not to tell anyone about what 

happened. Finally, in September 1993, Perez was arrested after 

agents from the Immigration and Naturalization Service executed 

a search warrant at his house in Texas. The agents found two 

boys, ages twelve and thirteen, who were living with Perez and 

Perez’s father. The boys were Mexican citizens and were living 

in the United States illegally. 

Interviews with the boys revealed that they had been living 

with respondent and his father for approximately two years, 

after respondent picked them up on the street in El Paso, Texas. 

The twelve-year-old boy reported that respondent began sexually 

abusing them the very next day. The reported sexual abuse 

involved anal intercourse and occurred in several locations 

besides the home, including locations in the state of New 

Mexico. Perez also transported the boys to and from Mexico on 

several occasions. At least three other children were 

interviewed during the investigation and reported that 

respondent had sexually molested them. Medical evaluations of 

the two reported victims revealed signs consistent with chronic 

perianal trauma.
9

In 1993, Perez pled guilty to Transportation of a Minor in 

Foreign Commerce with Intent to Engage in Aggravated Sexual 

Assault and to Importation of an Illegal Alien for the Immoral 

Purpose of Sexual Assault. He was sentenced to 120 months’

imprisonment on each charge, to be served consecutively, as well 

as three years of supervised release. 

In addition to reviewing this criminal offense history, all 

three experts sought to interview Perez. Drs. Malinek and Ross 

were rebuffed by Perez, who refused to cooperate. Dr. Plaud was 

more successful, eliciting a few limited statements from Perez 

relating to his personal sexual history. All three experts, 

however, found Perez’s statements to Dr. Plaud to be significant 

and considered them in assessing Perez’s sexual dangerousness. 

The experts unanimously diagnosed Perez with pedophilia, marked 

by an exclusive sexual attraction to young males, a condition 

all agreed qualified as “a serious mental illness, abnormality, 

or disorder.” 18 U.S.C. § 4247(a)(6). And, finally, all three 

experts agreed that Perez would have serious difficulty 

refraining from child molestation upon release from custody.

The district court found that the government established by 

clear and convincing evidence that Perez was a “sexually 

dangerous person” as defined by § 4247(a)(5), and that civil 

commitment was therefore required under § 4248(d). First, based 

on Perez’s criminal records, the court found that Perez “has 
10

engaged or attempted to engage in sexually violent conduct or 

child molestation” in the past. Id. § 4247(a)(5). Second, 

based on the unanimous opinions of the expert witnesses, the 

district court concluded that Perez “suffers from a serious 

mental illness, abnormality, or disorder.” Id. § 4247(a)(6). 

And third, relying on the detailed testimony of the experts as 

well as Perez’s criminal history, the district court held that 

the government had proven that Perez’s pedophilia “presently 

impairs respondent’s volitional ability to refrain from deviant 

behavior and that, absent abatement by effective treatment, 

would in the future give him serious difficulty in refraining 

from child molestation or sexually violent conduct.” J.A. 181-

82. 

III.

In an appeal from an order granting or denying a civil 

commitment under the Act, “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). Perez’s first challenge to the district court’s 

commitment order is a purely legal one—that the district court 

could not exercise personal jurisdiction over him because he was 

never served with a summons pursuant to Rule 4. We reject this 

argument.
11

A civil action in federal court commences with the filing 

of a complaint, see Fed. R. Civ. P. 3, and personal service of a 

summons and a copy of the complaint upon the defendant, see Fed. 

R. Civ. P. 4(c)(1). Rule 4 dictates that the summons must, 

among other things, identify the court and the parties; apprise 

the defendant when he or she must appear to defend against the 

allegations; and warn the defendant that failure to appear will 

result in a default judgment in favor of the plaintiff. See

Fed. R. Civ. P. 4(a)(1). If the summons is not served on the 

defendant within 120 days after the complaint is filed,

dismissal is required unless the district court extends the time 

for good cause shown. See Fed. R. Civ. P. 4(m). It is 

undisputed that the government never served Perez with a summons 

and that no extension of time was sought or granted. The 

government contends, however, that service of a standard civil 

summons under Rule 4 is not required to commence civil 

commitment proceedings under § 4248 against an allegedly 

“sexually dangerous person” in the custody of the BOP. 

As Perez points out, a commitment proceeding under § 4248 

is civil and not criminal in nature, see United States v. Timms, 

664 F.3d 436, 455-56 (4th Cir. 2012), and thus, broadly 

speaking, the Federal Rules of Civil Procedure would apply to a 

§ 4248 commitment proceeding. Rule 1 provides that “[t]hese 

rules govern the procedure in all civil actions and proceedings 
12

in the United States district courts, except as stated in Rule 

81.” Fed. R. Civ. P. 1. Although Rule 81 enumerates several 

types of civil actions or proceedings to which the Rules of

Civil Procedure, to one extent or another, do not apply, a civil 

commitment proceeding pursuant to 18 U.S.C. § 4248 is not among 

them. See Fed. R. Civ. P. 81. 

That the Rules of Civil Procedure generally apply to civil 

commitment proceedings under the Act, however, does not mean 

that they cannot be displaced by specific procedural provisions 

included in the Act. Congress “has ultimate authority over the 

Federal Rules of Civil Procedure; it can create exceptions to an 

individual rule as it sees fit—either by directly amending the 

rule or by enacting a separate statute overriding it in certain 

instances.” Shady Grove Orthopedic Assocs., P.A. v. Allstate 

Ins. Co., 559 U.S. 393, 400 (2010). The question is whether the 

Act requires the government to serve a summons pursuant to Rule 

4 upon a respondent in federal custody despite the obvious 

differences between the initiation of civil commitment 

proceedings under § 4248 and a typical civil action. We think 

not.

The Act does not expressly indicate whether service of a 

summons is required; “service of process” under Rule 4 is simply 

not mentioned. However, the Act is not silent as to how to 
13

initiate and to notify the respondent of a § 4248 commitment 

proceeding:

Institution of proceedings. In relation to a person 

who is in the custody of the Bureau of Prisons, . . . 

the Attorney General or any individual authorized by 

the Attorney General or the Director of the Bureau of 

Prisons may certify that the person is a sexually 

dangerous person, and transmit the certificate to the 

clerk of the court for the district in which the 

person is confined. The clerk shall send a copy of 

the certificate to the person, and to the attorney for 

the Government . . . . 

18 U.S.C. § 4248(a) (emphasis added). The Act provides a 

streamlined procedure for initiating commitment proceedings 

against individuals in BOP custody who have been certified as 

“sexually dangerous” under § 4248. Under the Act, “[t]he 

Attorney General, his designee, or the Director of the [BOP] may 

initiate a § 4248 commitment proceeding in the district court 

for the district in which the person is confined by filing a 

certification that the person is sexually dangerous within the 

meaning of the Act.” Heyer, 740 F.3d at 286 (emphasis added). 

And, rather than require the government to effect formal service 

of the certificate and a standard summons upon the respondent, 

the Act directs the clerk of court simply to “send a copy of the 

certificate to the person” in BOP custody who was certified as 

“sexually dangerous.” 18 U.S.C. § 4248(a). 

We conclude that the procedure set forth in 18 U.S.C. § 

4248(a) for initiating proceedings for the civil commitment of a 
14

sexually dangerous person supplants the summons requirement set 

forth in Rule 4. Service of process pursuant to Rule 4 serves 

two primary functions in a typical civil action in federal 

court: it provides formal notice to the defendant to appear and 

defend against an action that has been commenced in federal 

court, and it is the means by which the court asserts its 

personal jurisdiction over the defendant. See Henry H. Perritt, 

Jr., Jurisdiction in Cyberspace, 41 Vill. L. Rev. 1, 31 (1996) 

(“Service of process performs two functions in Anglo-American

civil procedure: it represents assertion of judicial power of 

the forum state over the person of the defendant, and it is the 

formal means of providing notice to the defendant so that he or 

she may defend the lawsuit.”). In the unique context of a § 

4248 proceeding, however, service of a standard summons under 

Rule 4 is not necessary to perform either function. 

First, the paramount function of serving a summons is to 

provide formal notice to the defendant that action is required 

to avoid liability and preserve his or her rights. Service of 

the summons apprises a defendant “of the pendency of the action”

and “afford[s] [the defendant] an opportunity to present [his] 

objections.” Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 

84 (1988) (quoting Mullane v. Central Hanover Bank & Trust Co., 

339 U.S. 306, 314 (1950)). Establishing notification to a civil 

defendant through proper service of the summons is critical 
15

since, among other things, service of the summons triggers 

defendant’s duty to file a responsive pleading to the complaint, 

see Fed. R. Civ. P. 12(a)(1)(A)(i) (“A defendant must serve an 

answer . . . within 21 days after being served with the summons 

and complaint.”), and the failure to respond in a timely fashion 

can result in liability being imposed by default, see Fed. R. 

Civ. P. 55(a). 

The respondent in a § 4248 civil commitment proceeding, by 

contrast, is not required to file any responsive pleading and 

faces no risk of a contrary merits determination being entered 

by default or without his knowledge. In fact, Congress afforded 

§ 4248 respondents a number of procedural safeguards, including 

a mandatory evidentiary hearing, see 18 U.S.C. § 4248(a) (“The 

court shall order a hearing to determine whether the person is a 

sexually dangerous person.”); id. § 4248(d) (granting district 

courts the power to “commit the [respondent] to the custody of 

the Attorney General” after the mandatory hearing); and the 

right to be represented by an attorney at the mandatory 

evidentiary hearing, see id. §§ 4248(c), 4247(d) (providing that 

“[a]t a hearing ordered pursuant to this chapter the 

[respondent] . . . shall be represented by counsel and, if he is 

financially unable to obtain adequate representation, counsel 

shall be appointed for him”). Moreover, at the mandatory 

hearing, the respondent “shall be afforded an opportunity to 
16

testify, to present evidence, to subpoena witnesses on his 

behalf, and to confront and cross-examine witnesses who appear 

at the hearing.” Id. § 4247(d). In light of these procedural 

safeguards inherent in § 4248 proceedings, receipt of a copy of 

the certificate initiating commitment proceedings suffices to 

provide notice to the respondent—and it is undisputed that Perez 

was provided a copy of the certificate seeking to have him 

committed as a “sexually dangerous person.” Service of a 

summons is unnecessary in this context in view of the fact that 

Congress provided another means of notifying the respondent of 

the proceedings as well as several procedural safeguards.1 See

Meadows v. Krischer, 763 So. 2d 1087, 1091 (Fla. Dist. Ct. App. 

1999) (concluding that “a standard civil summons would be 

unnecessary” to initiate proceedings under Florida law providing 

for the civil commitment of “sexually violent predators” where 

the law did not require service of a regular civil summons). 

A second function performed by service of a civil summons 

under Rule 4 is to assert the district court’s jurisdiction over 

a person. “Before a federal court may exercise personal 

jurisdiction over a defendant, the procedural requirement of 

service of summons must be satisfied. Service of summons is the 

procedure by which a court having venue and jurisdiction of the 

 1 Perez does not challenge the constitutional sufficiency of 

the notice prescribed by 18 U.S.C. § 4248(a). 
17

subject matter of the suit asserts jurisdiction over the person 

of the party served.” Omni Capital Int’l, Ltd. v. Rudolf Wolff 

& Co., 484 U.S. 97, 104 (1987) (emphasis added) (internal 

quotation marks and alteration omitted). Historically, however,

personal jurisdiction in both the civil and criminal contexts 

flowed from physical custody or control over the defendant. See

ALS Scan, Inc. v. Digital Serv. Consultants, Inc., 293 F.3d 707, 

710-11 (4th Cir. 2002) (“[T]he limits on personal jurisdiction 

were grounded in a court’s power over the actual person of the 

defendant. Thus, a person’s ‘presence within the territorial 

jurisdiction of a court was prerequisite to its rendition of a 

judgment personally binding him.’” (quoting Int’l Shoe Co. v. 

Washington, 326 U.S. 310, 316 (1945)). Over time in the civil 

context, “[t]he idea of ‘minimum contacts’ developed as a 

surrogate for actual presence in a State but did not alter the 

essentially territorial nature of jurisdiction.” Yahoo! Inc. v. 

La Ligue Contre Le Racisme Et L’Antisemitisme, 433 F.3d 1199, 

1228 (9th Cir. 2006) (en banc) (O’Scannlain, J., concurring in 

judgment). Personal jurisdiction in a criminal case is still 

based on physical presence, which is usually acquired by taking 

the defendant into custody via arrest. See United States v. 

Wilson, 721 F.2d 967, 972 (4th Cir. 1983) (“It has long been the 

general rule that a court’s power to try a criminal defendant is

not impaired by the government’s use of even forcible abduction 
18

to bring the defendant within the court’s jurisdiction.”); 

United States v. Rendon, 354 F.3d 1320, 1326 (11th Cir. 2003) 

(“A federal district court has personal jurisdiction to try any 

defendant brought before it on a federal indictment charging a 

violation of federal law.”). Even if physical custody is no 

longer necessary to endow a civil court with personal 

jurisdiction over a defendant, it is clearly sufficient to do 

so. Thus, that the government has physical custody over the 

respondent in § 4248 civil commitment proceedings obviates the 

need for a summons. 

IV.

Next, Perez contends that the district court committed 

clear error in finding him to be a “sexually dangerous person.” 

18 U.S.C. § 4248(d). “A finding is ‘clearly erroneous’ when 

although there is evidence to support it, the reviewing court on 

the entire evidence is left with the definite and firm 

conviction that a mistake has been committed.” Hall, 664 F.3d 

at 462 (internal quotation marks omitted).

To obtain a civil commitment order under the Act, the 

government must prove three elements by clear and convincing 

evidence. See United States v. Wood, 741 F.3d 417, 419 (4th 

Cir. 2013). The government first must demonstrate that the 

person has previously “engaged or attempted to engage in . . . 

child molestation.” 18 U.S.C. § 4247(a)(5); see Wood, 741 F.3d 
19

at 419. Second, the government must establish that the person

currently “suffers from a serious mental illness, abnormality, 

or disorder.” 18 U.S.C. § 4247(a)(6); Wood, 741 F.3d at 419. 

And third, “the government is required to show that the 

defendant, as a result of the illness, abnormality, or disorder, 

‘would have serious difficulty in refraining from . . . child 

molestation if released.’” Wood, 741 F.3d at 419 (quoting 18 

U.S.C. § 4247(a)(6)). “Clear and convincing” evidence is 

“evidence of such weight that it produces in the mind of the 

trier of fact a firm belief or conviction, without hesitancy, as 

to the truth of the allegations sought to be established, and, 

as well, as evidence that proves the facts at issue to be highly 

probable.” Jimenez v. DaimlerChrysler Corp., 269 F.3d 439, 450 

(4th Cir. 2001) (internal quotation marks, citations, and 

alterations omitted). “[T]he ‘clear and convincing’ standard of 

proof is an ‘intermediate standard’ that falls between a ‘mere 

preponderance of the evidence’ and ‘beyond a reasonable doubt.’” 

Hall, 664 F.3d at 461 (quoting Addington, 441 U.S. at 423-24).

Perez does not dispute that the government established the 

first two elements by clear and convincing evidence – (1) that 

he previously engaged or attempted to engage in child 

molestation and (2) that he suffers from a serious mental 

illness, abnormality, or disorder, i.e., pedophilia. Perez 

challenges only the district court’s finding that as a result of 
20

his pedophilia, “he would have serious difficulty in refraining 

from . . . child molestation if released.” 18 U.S.C. § 

4247(a)(6). “[T]he serious difficulty prong of § 4248’s

certification proceeding 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.” Hall, 

664 F.3d at 463 (internal quotation marks omitted). The “‘lack 

of control or inability to control behavior will not be 

demonstrable with mathematical precision. It is enough to say 

that there must be proof of serious difficulty in controlling 

behavior.’” Id. (quoting Kansas v. Crane, 534 U.S. 407, 413 

(2002)) (alteration omitted).

Perez contends that the government’s evidence rested almost 

entirely on his criminal offense history and failed to 

adequately account for Perez’s current level of volitional 

impairment. Perez claims, moreover, that any expert opinion 

about his present mental state and capacity for volitional 

control rests on speculation, especially, he points out, because 

none of the experts who testified at the commitment hearing 

interviewed him.

First, we reject Perez’s suggestion that the district 

court’s substantial consideration of his criminal offense 

history was erroneous or improper. Although “[t]he nature of 

[Perez’s] prior crimes may well be a historical factor, . . . it 
21

is by no means a stale or irrelevant one. When the question is 

whether an inmate suffering from pedophilia 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.

Moreover, it is not entirely accurate to suggest that each 

expert evaluation was completed without Perez being interviewed. 

Although Perez refused to submit to pre-hearing interviews with 

the government’s psychologists, he ultimately participated to 

some extent in Dr. Plaud’s interview.2

 Perez refused to discuss 

his offense history with Dr. Plaud, but he did comment generally 

on his sexual history, denying pedophilic sexual arousal and 

“presenting himself as a . . . non-violent, moral heterosexual 

male.” J.A. 109. Despite this self-characterization, Perez 

admitted to Dr. Plaud that he had never experienced sexual 

relations with an adult woman. Because these comments were so 

completely at odds with Perez’s offense history, his statements 

during the interview raised concerns for Dr. Plaud that Perez 

possibly suffered “cognitive distortions, bordering on 

 2 Dr. Plaud explained that “[a]t the outset, Mr. Perez did 

not indicate . . . that he even wanted to participate in the 

interview” but that Perez “reconsidered as [Dr. Plaud] began to 

leave.” J.A. 108. 

 
22

delusion[s]” regarding his sexuality. J.A. 110.3 Perez also 

told Dr. Plaud that he does not need sexual offender treatment, 

supporting Dr. Plaud’s belief that Perez is “an untreated 

pedophile who is actively denying his sexual arousal patterns.” 

J.A. 111. Dr. Plaud indicated that he learned nothing from the 

clinical interview that suggested Perez ever acquired the 

ability to regulate and control his sexual impulses or that he 

“has the present-day ability to monitor and control his sexual 

impulses.” J.A. 230. Significantly, Drs. Malinek and Ross both 

considered Perez’s statements to Dr. Plaud and incorporated them 

into their own analyses. Accordingly, the lack of a formal 

interview with either Dr. Malinek or Dr. Ross—which was of 

Perez’s own making—did not render either report unreasonable or 

speculative. 

We conclude that the government easily presented sufficient 

evidence to support the conclusion that, by clear and convincing 

evidence, Perez, as a result of his pedophilia, “would have 

serious difficulty in refraining from . . . child molestation if 

released.” 18 U.S.C. 4247(a)(6). First, the government 

submitted written evaluations conducted by its expert 

 3 Dr. Plaud also observed, however, that it was difficult to 

determine “how serious . . . he took the entire interview 

process” and that Perez may have been merely trying to “elicit a 

reaction” from Dr. Plaud by claiming to be a heterosexual male. 

J.A. 110.
23

psychologists, Drs. Malinek and Ross. Both experts considered 

(1) actuarial scales incorporating static risk factors for sex 

offenders to determine a statistical likelihood that Perez would 

engage in child molestation again, and (2) dynamic risk factors 

from the STABLE-2007 scale. “[U]nlike static factors, which 

typically are historical and do not change, a dynamic risk 

factor refers to something that has the capacity to change over 

time, for example with treatment.” United States v. Bolander, 

722 F.3d 199, 209 (4th Cir. 2013).

Dr. Malinek “considered the most recent published studies 

and risk assessment formulas” to determine whether Perez would 

at the time of the evaluation have serious difficulty refraining 

from child molestation if released from BOP custody. Dr. 

Malinek applied three different actuarial scales “that assess 

baseline recidivism risk in sexual offenders.” J.A. 214. 

First, Perez’s risk of reoffending was assessed using the 

Static-99R scale, which incorporates numerous static factors 

such as prior sex offenses, age at release, and whether the 

person had any “unrelated victims,” “stranger victims,” or “male 

victims.” J.A. 215. Dr. Malinek scored Perez a 4 on the 

Static-99R, which placed him in the moderate-high risk category 

and suggested “recidivism rates of 15.4% in five years and 22.6% 

in ten years.” J.A. 218. Second, Dr. Malinek used the Static 

2002-99R scale. This risk assessment formula takes into account 
24

five static categories, including age, persistence of sexual 

offending, deviant sexual interests, relationship to the 

victims, and general criminality. Dr. Malinek scored Perez a 7 

on the Static-2002R, placing him in the moderate-high risk 

category. Offenders assessed with a similar score and grouping 

as Perez “have been found to sexually reoffend at a rate of 25.2 

percent in five years and 35.8 percent in ten years.” J.A. 220. 

Finally, Perez was assessed using the Minnesota Sex Offender 

Screening Tool-Revised (MnSOST-R). Dr. Malinek gave Perez a 

score of 12 on the MnSOST-R, placing him in the high risk 

category with an “expected recidivism rate within six years of 

release [of] 30 percent.” J.A. 221. 

Dr. Malinek then considered a number of dynamic risk 

factors taken from the STABLE-2007 scale “that have been 

statistically liked with both increased recidivism and decreased 

recidivism.” J.A. 221. “Significant Negative Social Influence” 

for example, is a well-established predictor of general 

recidivism that, in Dr. Malinek’s view, suggests an increased 

risk of re-offending for Perez, who had “family, friends, and 

acquaintances who are criminally involved, have past sexual 

offenses, . . . or who minimize or deny [Perez’s] sex crimes.” 

J.A. 223. Specifically, Perez’s father lived with him during 

the time that he kept two Mexican boys in his home and sexually 

abused them. Dr. Malinek highlighted the impulsive nature of 
25

Perez’s sexually deviant conduct, exemplified by his having 

begun molesting his most recent victims immediately after 

meeting them. Dr. Malinek also noted that Perez’s pedophilia is 

a chronic condition and that it is unlikely that “his decadeslong deviant interest in boys has abated simply as a function 

[of the] passage of time,” J.A. 225; and that Perez has molested 

new victims while on supervised release or on bond for similar 

offenses, and that there was no information to suggest that 

Perez had ever maintained a stable intimate relationship. 

Based on his assessment using the foregoing static and 

dynamic risk factors, Dr. Malinek concluded in his report that 

Perez met the statutory criteria for civil commitment as a 

sexually dangerous person. Dr. Malinek reiterated this opinion 

during his testimony at the hearing, emphasizing the chronic 

nature of his long-term pedophilic fixation, and the impulsive 

and brazen nature of his sexual offense against children: 

[Perez’s pedophilia] has spanned for decades, has led 

him to engage in sexual molestation of multiple boys 

over a period of 25 years. . . .

. . . His pedophilic urges have repeatedly led him to 

act out, have been evident in volitional impairments 

time and again, have been evident in [the] predatory 

search for victims, have been evident in both 

opportunistic and predatory crimes, have been evident 

in recidivism on three occasions . . . and while on 

conditional release on three separate occasions. 

. . .

. . . These are mostly stranger children that he’s 

never met before. . . .
26

. . . 

[T]here is no evidence that he had developed any 

emotional attachment or relationship with these kids. 

It looks like this was a predatory search for the 

primary purpose of sexual victimization to me.

J.A. 127-130. Dr. Malinek viewed the impulsive and public 

nature of Perez’s offenses as particularly illustrative of the 

danger he poses to his preferred victims: 

The crimes here are both impulsive and predatory . . . 

in the sense that he takes advantage of an opportunity 

when it presents itself, there’s always a significant 

level of impulsivity evident in it.

The reference to crimes occurring in a public place, 

in the changing room of a Dillard department store in 

1982 or in the street as happened in November of 1982, 

clearly speaks to . . . brazen, high-risk behavior, 

[in view of] the fact that he could be detected, or 

that the mother of the boy he molested who he was 

trying to sell newspapers to, she could identify him.

. . . [T]he urge develops very quickly, he acts out on 

it right away in a public place.

J.A. 131. Finally, Dr. Malinek testified that Perez’s 

statements to Dr. Plaud within six months of the hearing 

reaffirmed his opinion that Perez would have difficulty 

refraining from child molestation. Specifically, Perez’s 

admission that he never had sexual relations with an adult 

female “means that he is probably an exclusive, fixated 

pedophile” and that “kids are his only way to meet his sexual 

needs.” J.A. 140. Moreover, Dr. Malinek observed that his 

“presentation of himself” to Dr. Plaud as interested in adult 

heterosexual relationships suggested he was in denial of his 
27

disorder and therefore unlikely to change simply with the 

passage of time. 

Dr. Ross also provided a written evaluation addressing 

Perez’s sexual dangerousness under § 4248. Like Dr. Malinek, 

Dr. Ross assessed Perez’s statistical risk of recidivism using 

static risk factors under the Static-99R scale and then further 

evaluated the statistical results in light of various dynamic 

risk factors taken from the STABLE-2007 scale. Dr. Ross scored 

Perez a 3 on the Static-99R, which put him in the low-moderate 

risk category “with about a 9.3% likelihood for being arrested 

or convicted of a new sexual offense within 5 years postincarceration and about a 14.5% likelihood . . . in 10 years.” 

J.A. 197. Dr. Ross, however, noted that her score 

underestimated his actual risk due to the scoring of his age 

under the Static-99R, which reflects the general tendency for an 

offender’s risk of reoffending to decrease significantly after 

age 60. Dr. Ross concluded that “[t]his does not seem likely in 

Mr. Perez’s case, however, due to his long history of sexual 

offending, as well as the fact that his most recent offenses 

(which occurred when he was between 45 and 47 years old) were 

also his most egregious.” J.A. 196. Ultimately, Dr. Ross 

opined that Perez would have serious difficulty refraining from 

child molestation upon release from prison.
28

At the hearing, Dr. Ross strengthened her opinion based on 

Perez’s statements as recounted by Dr. Plaud. Dr. Ross 

testified that she would now score Perez a 4 on the Static-99R, 

as did Dr. Malinek, in view of Perez’s admission—of which Dr. 

Ross was previously unaware—that he has never had a sexually 

intimate relationship with an adult. Dr. Ross also emphasized 

many of the same factors that Dr. Malinek found suggestive that 

Perez would experience serious difficulty refraining from child 

molestation, including the impulsive, brazen and public nature 

of his pedophilic offenses; the chronic nature of Perez’s 

disorder; and his refusal to participate in sexual offender 

treatment. 

Dr. Plaud, who was initially engaged on behalf of Perez, 

was also called by the government to testify. In a written 

evaluation prepared pre-trial, Dr. Plaud reported that although 

“from a statistical perspective Mr. Perez is at this time [a] 

low risk to re-offend sexually . . . , there is evidence that he 

may have ongoing and serious difficulty in refraining from 

further acts of child molestation if he were released.” J.A. 

230. Dr. Plaud concluded finally that “[a]t best the data in 

this case are equivocal; however, I cannot opine that Mr. Perez 

is not a sexually dangerous person at this time.” J.A. 231. 

At the evidentiary hearing, however, Dr. Plaud unequivocally 

stated that he considered Perez “sexually dangerous” under the 
29

Act: “I am unpersuaded that [Perez] has developed the skills to 

control his sexual behavior as a function of increased age, 

because I think he is so actively denying the very basis of his 

sexual arousal towards pre-pubescent-aged males . . . . That’s 

why I think he’s sexually dangerous.” J.A. 112-13. 

Although the district court recognized and considered the 

statistical rates of recidivism based on the various actuarial 

scales, the court explained that it “affords them less weight 

than respondent’s past and current conduct, and the testimony of 

the experts as a whole.” J.A. 179. The district court noted 

that each of the testifying experts identified several factors 

as indicative of Perez’s lack of volitional control, including 

Perez’s impulsivity, failure to cooperate while on supervised 

release, and his brazen and risky behavior despite previous 

legal sanctions. The district court also gave significant 

weight to Perez’s lack of sex offender treatment and his 

apparent denial of pedophilic sexual interest. And, the 

district court concluded, based on testimony from all three 

experts, that Perez’s age did not mitigate his risk of 

recidivism in light of all of the other risk factors.

In sum, the district court carefully considered the 

evidence before it, and its factual findings represent a 

permissible and reasonable interpretation of the evidence 

presented at the hearing. Because we are not “left with the 
30

definite and firm conviction that a mistake has been committed” 

by the district court, Hall, 664 F.3d at 462 (internal quotation 

marks omitted), we cannot say that the district court clearly 

erred in finding, by clear and convincing evidence, that Perez

is sexually dangerous within the meaning of the Act. 

V.

Finally, Perez contends that (1) the Act deprives him of 

equal protection under the Fifth and Fourteenth Amendments, and 

(2) the Act imposes an unconstitutional criminal punishment. 

Both of these arguments are foreclosed by our decision in Timms. 

See 664 F.3d at 449, 455. Accordingly, we reject these 

arguments.

VI.

For the foregoing reasons, the order of the district court 

is 

AFFIRMED.