United States of America v. Thomas Heyer

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-7472
UNITED STATES OF AMERICA,
Petitioner - Appellee,
v.
THOMAS HEYER,
Respondent - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:08-hc-02183-BO)
Argued: December 10, 2013 Decided: January 17, 2014
Before MOTZ, AGEE, and DIAZ, Circuit Judges.
Affirmed by published opinion. Judge Agee wrote the opinion, in
which Judge Motz and Judge Diaz concurred.
ARGUED: Eric Joseph Brignac, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Raleigh, North Carolina, for Appellant. Denise
Walker, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, 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., G. Norman Acker, III, Assistant
United States Attorneys, OFFICE OF THE UNITED STATES ATTORNEY,
Raleigh, North Carolina, for Appellee.

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AGEE, Circuit Judge:
Respondent-Appellant Thomas Heyer (“Heyer”) appeals the
district court’s order of civil commitment following an
evidentiary hearing pursuant to 18 U.S.C. § 4248. On appeal,
Heyer—who is deaf and communicates through sign language—
contends that the district court abused its discretion in only
allowing simultaneous interpretation, rather than consecutive
interpretation, during the evidentiary hearing. Heyer also
contends that the district court clearly erred in finding him to
be a “sexually dangerous person” under § 4248, and further erred
in rejecting his equal protection and due process claims. For
the reasons that follow, we affirm the judgment of the district
court.
I.
A.
The Adam Walsh Child Protection and Safety Act of 2006 (the
“Act”), 18 U.S.C. §§ 4247–4248, provides for the civil
commitment of sexually dangerous persons following the
expiration of their federal prison sentences. See 18 U.S.C.
§ 4248(a). A “sexually dangerous person” is one “who has
engaged or attempted to engage in sexually violent conduct or
child molestation and who is sexually dangerous to others.” See
18 U.S.C. § 4247(a)(5). A person is considered “sexually

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dangerous to others” if “the person suffers from a 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. at
§ 4247(a)(6).
The Attorney General, his designee, or the Director of the
Federal Bureau of Prisons (“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. See
18 U.S.C. § 4248(a). Such a filing automatically stays the
release of the person from custody pending a hearing before the
district court. See id. “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. § 4248(d).
B.
On December 18, 2008, the Government initiated this action
by filing a certificate pursuant to 18 U.S.C. § 4248(a) in the
United States District Court for the Eastern District of North
Carolina seeking to have Heyer civilly committed as a “sexually
dangerous person” under the Act. The certificate stated that
mental health personnel for the BOP had examined Heyer and

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issued a preliminary determination that he is “sexually
dangerous” within the meaning of the Act. See 18 U.S.C. §
4248(a) (“In relation to a person who is in the custody of the
[BOP], . . . the Attorney General or any individual authorized
by the Attorney General or the Director of the [BOP] 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.”).
Pursuant to 18 U.S.C. § 4247(d), the district court
conducted an evidentiary hearing on May 30 and 31, 2012.1 Dr.
Jeffrey Davis (“Dr. Davis”) and Dr. Heather Ross (“Dr. Ross”),
forensic psychologists, provided forensic reports and testified
on behalf of the Government that Heyer met the criteria for
civil commitment. Dr. Diane Lytton (“Dr. Lytton”), a forensic
psychologist, provided a forensic report and testified on behalf
of Heyer that he did not meet the criteria for commitment. In
addition, Dr. Jean Andrews (“Dr. Andrews”), an expert in
deafness and psychosocial issues related to deafness, also
provided a report and testified on behalf of Heyer.
1 We note that the four-year delay between the date the
Government filed the § 4248 certificate on December 18, 2008, to
the date of the hearing on May 30 and 31, 2012, is primarily
attributable to the stay imposed in relation to United States v.
Comstock, 560 U.S. 126 (2010); see also United States v.
Comstock, 627 F.3d 513 (4th Cir. 2010); United States v.
Comstock, 551 F.3d 274 (4th Cir. 2009).

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At the hearing, Heyer initially moved the court to provide
him with consecutive, rather than simultaneous, interpreting.
The district court denied Heyer’s request, stating, “Well, it’s
a civil case. The answer is no. We are not going to make this
into a marathon.” (J.A. 87.)
Based on the evidence presented, the district court adopted
the following undisputed findings of fact. Heyer is deaf and
communicates through American Sign Language (“ASL”). Throughout
his youth, Heyer was assaulted and molested numerous times. In
1989, at age twenty-two, Heyer was convicted of terroristic
threats after getting into an argument with a man who accused
him of molesting his eight-year-old son. Around the same time,
Heyer was also convicted of burglary and armed robbery.
In 1993, Heyer molested a ten-year-old boy, then tied the
boy up and placed him in a hole. He was convicted of kidnapping
and sentenced to ten years in prison. In the several years
following Heyer’s release from prison, he was convicted of a
series of misdemeanors, including offenses for public
intoxication, driving under the influence, reckless
endangerment, vandalism, and passing a bad check.
Around 2002, Heyer was found to have approximately 180
images of child pornography in his possession. He subsequently
pled guilty to possession of child pornography. Upon his
release from prison for the child pornography conviction, he

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began sex offender treatment while on supervised release. His
supervised release, however, was revoked in 2007 when he showed
up at a treatment session under the influence of alcohol.
Heyer also admitted to the following additional facts
during a deposition which was admitted into the record. Heyer
admitted that while he was on probation, he looked at “a lot of
different websites that were triple-x,” (J.A. 432), and
masturbated to those images (J.A. 432–33). The pictures Heyer
viewed included adults and children together in sexual
situations; he also admitted that he showed some of these
pictures to [redacted], a young teenage boy whom he had
befriended. Heyer further admitted to having engaged in sexual
activity, including mutual masturbation and oral sex with
[redacted] while [redacted] was a young teenager, and that such
sexual activity occurred over a period of approximately one-and-
a-half years. Although Heyer knew that having sex with
[redacted] was wrong, he continued the activity because “I liked
it and he was willing.” (J.A. 450.) He also told [redacted]
that he liked having sex with other children.
In addition, Heyer admitted to having had sexual contact
with between eighteen and twenty-five boys after he turned
eighteen years old. Among other child victims Heyer molested

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was his nephew, whom he molested when the nephew was
approximately six years old.2
Heyer also admitted to using both marijuana and cocaine
while he was on probation during 2007 and that he went to sex
offender treatment “drunk” during this time. (J.A. 456.)
According to Heyer, he did not consider himself to be “drunk”
previously when he was arrested for driving under the influence
(despite blowing a 0.17 on the blood alcohol test) because he
was “able to walk straight.” (J.A. 442.)
According to Dr. Lytton, Heyer’s own expert examiner, Heyer
admitted to the following additional facts during his interview
with her. He “described his adolescent years as plagued by
fighting and being the victim of sexual aggression.” (J.A. 627–
28.) In addition, Heyer admitted that his “typical pattern as a
young adult was to spend his entire paycheck on an alcohol
binge, and live meagerly until the next payday.” (J.A. 627.)
Heyer further admitted that he “often exposed himself to
strangers in efforts to gauge their sexual interest in him,” and
that he would “attempt to view other people’s private parts when
in bathrooms or showers.” (J.A. 628.) He also admitted “to
some arousal to pre-pubescent boys, around age eight,” and “to
2 It is unclear whether this happened on more than one
occasion, since Heyer indicated that the molestation “stopped”
when his nephew was six years old. (J.A. 489.)

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fondling a number of young boys, incidents for which he was not
investigated or charged.” (J.A. 628.) Lastly, during the
commission of the crime in 1993 where he kidnapped and molested
a boy, then tied him up and left him in a hole, Heyer admitted
that he “buried the boy to avoid detection” and then was
“deceptive with police, and did not provide information that
would have led to the discovery of the boy.” (J.A. 629.)
Both of the experts that testified for the Government, Dr.
Ross and Dr. Davis, opined that Heyer suffered from pedophilia,
as well as other mental disorders—including antisocial
personality disorder and substance abuse problems—and would have
serious difficulty refraining from future acts of child
molestation if released. Dr. Lytton, who testified on these
issues for Heyer, opined that she did not believe he currently
suffers from either pedophilia or antisocial personality
disorder. She acknowledged, however, that “Heyer’s criminal
history includes past behaviors that suggest he may have met
such criteria [for pedophilia] at that time.” (J.A. 631.) Dr.
Lytton further opined that “[i]t would be difficult to argue
that Mr. Heyer did not meet the criteria [for antisocial
personality disorder] in the past.” (J.A. 631.)
On July 9, 2012, the district court issued its Findings of
Fact and Conclusions of Law pursuant to Federal Rule of Civil
Procedure 52(a)(1), concluding that the Government had proven by

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clear and convincing evidence that Heyer was a “sexually
dangerous person” within the meaning of the Act. Specifically,
the district court found that Heyer currently suffers from the
serious mental illness of pedophilia, and that Dr. Ross and Dr.
Davis had provided a more convincing analysis than Dr. Lytton.
The court concluded that the Government had “met its burden to
demonstrate by clear and convincing evidence that Mr. Heyer
suffers from a serious mental illness, abnormality, or disorder
as a result of which he would have serious difficulty refraining
from sexually violent conduct or child molestation if released.”
(J.A. 521.) The district court accordingly committed Heyer to
the custody of the Attorney General pursuant to 18 U.S.C.
§ 4248.
Heyer timely appealed, and we have jurisdiction under 28
U.S.C. § 1291.
II.
On appeal, Heyer contends that the district court (1)
abused its discretion in allowing only simultaneous
interpretation, rather than consecutive interpretation, during
the evidentiary hearing; (2) clearly erred in finding him to be
a “sexually dangerous person” under 18 U.S.C. § 4248; and (3)
erred in rejecting his equal protection and due process claims.
We address each argument in turn.

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A.
Heyer first contends that the district court abused its
discretion in allowing only simultaneous interpretation, rather
than consecutive interpretation, during the evidentiary hearing.
Heyer asserts his claim under the authority of the Court
Interpreters Act (“CIA”), 28 U.S.C. §§ 1827–28. We review the
district court’s final determination on the appointment and use
of interpreters for an abuse of discretion, as the district
court “is in the best position to evaluate the need for and the
performance of interpreters.” United States v. Sandoval, 347
F.3d 627, 632 (7th Cir. 2003); accord United States v. Camejo,
333 F.3d 669, 673 (6th Cir. 2003); United States v. Urena, 27
F.3d 1487, 1492 (10th Cir. 1994). To the extent that Heyer
claims a hearing on this issue was required, such a claim is
reviewed for plain error since he did not request such a hearing
in the district court. United States v. Olano, 507 U.S. 725,
731–32 (1993); United States v. Hastings, 134 F.3d 235, 239 (4th
Cir. 1998).
Initially, we note that the CIA requires only simultaneous
interpretation for non-witnesses, unless the court rules
otherwise:
The interpretation provided by certified or
otherwise qualified interpreters pursuant to
this section shall be in the simultaneous
mode for any party to a judicial proceeding
instituted by the United States and in the

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consecutive mode for witnesses, except that
the presiding judicial officer, sua sponte
or on the motion of a party, may authorize a
simultaneous, or consecutive interpretation
when such officer determines after a hearing
on the record that such interpretation will
aid in the efficient administration of
justice.
28 U.S.C. § 1827(k) (emphasis added). The statute explicitly
provides that interpretation “shall be in the simultaneous mode”
for non-witnesses, unless the district court rules otherwise.3
Id. The effective presumption of simultaneous interpretation
will change only if the district court determines that it “will
aid in the efficient administration of justice.” Id.
In this case, the sum and substance of the district court’s
ruling was that consecutive interpretation would not “aid in the
efficient administration of justice,” id., because consecutive
interpretation of the entire proceeding would have unduly
delayed and enlarged the evidentiary hearing. When the district
court inquired as to why Heyer wanted consecutive
interpretation, Heyer’s attorney responded, “[b]ecause the
potential problem is that we could be way down the road before
we realize that Mr. Heyer doesn’t understand something.” (J.A.
3 If Heyer had testified, he would have been entitled to
consecutive interpretation during his testimony, unless the
district court ruled otherwise. See 28 U.S.C. § 1827(k). Heyer
did not testify at the evidentiary hearing and makes no claim to
consecutive interpretation on the witness portion of the
statute.

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87.) That single response was the complete rationale proffered
for departure from the statutory presumption of simultaneous
interpretation with no tender by Heyer, then or now, of what a
“potential problem” might be. (J.A. 87.) Moreover, at no point
during the two-day hearing did Heyer or his attorney indicate to
the district court that Heyer did not understand the
proceedings. Thus, there was never any indication that the
speculative “potential problem,” (J.A. 87), had become an actual
problem.
Moreover, the district court made a number of substantial
accommodations to help Heyer understand the proceedings.4 The
court provided both qualified and certified legal interpreters,
as well as certified deaf interpreters, so that a total of four
interpreters were present at all times during the two-day
hearing. An interpreter was also permitted to sit with Heyer at
counsel table throughout the proceeding. The district court
also allowed Heyer, on several occasions, to stop the
proceedings if he did not understand what was going on.
Further, contrary to Heyer’s assertion, the district court
was not required to hold a hearing on whether or not to grant
4 Prior to trial, Dr. Andrews, Heyer’s linguistic expert,
made six recommendations to the district court concerning
accommodations that would help Heyer understand the proceedings.
The only accommodation that the district court did not grant in
toto was the suggestion of consecutive interpretation throughout
the hearing.

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the request for consecutive interpretation. The CIA provides
that “the presiding judicial officer, sua sponte or on the
motion of a party, may authorize . . . consecutive
interpretation when such officer determines after a hearing on
the record that such interpretation will aid in the efficient
administration of justice.” 28 U.S.C. § 1827(k) (emphasis
added). Heyer made no request for a hearing in the district
court, and did not object to the district court’s denial of the
request for consecutive interpretation. Accordingly, the
district court’s decision to not hold a hearing sua sponte is
reviewed only for plain error. Olano, 507 U.S. at 731–32;
Hastings, 134 F.3d at 239. To succeed, Heyer must demonstrate
that an error occurred, that the error was plain, and that the
error affected his substantial rights. See Olano, 507 U.S. at
732; Hastings, 134 F.3d at 239. Even if Heyer can satisfy these
requirements, correction of the error remains in the Court’s
sound discretion, which it “‘should not exercise . . . unless
the error seriously affects the fairness, integrity, or public
reputation of judicial proceedings.’” Hastings, 134 F.3d at 239
(quoting Olano, 507 U.S. at 732) (internal quotation marks and
alteration omitted).
Heyer is unable to show any error here, much less plain
error. It is unclear what evidence, if any, Heyer would have
submitted during a hearing on the matter that had not already

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been presented through the report of Dr. Andrews, which had been
filed with the district court more than five months prior to the
hearing. In his briefing, Heyer does not indicate any
additional information that he would have submitted to the
district court on this issue. Further, Heyer cites no case law
in which any court has held that the refusal to hold a hearing
on whether to grant such a motion was an abuse of discretion,
much less plain error. Moreover, there is no evidence that
Heyer suffered any prejudice from the district court’s failure
to hold a hearing on this issue.
Lastly, Heyer contends that the district court based its
refusal to grant consecutive interpretation on a “mistake of
law,” which he claims is a per se abuse of discretion. Heyer
bases his argument on a single statement by the district court
that this is a civil matter, rather than a criminal proceeding:
THE COURT: Why do you want [consecutive
interpretation]?
MS. GRAVES [Counsel for Heyer]: Because the
potential problem is that we could be way
down the road before we realize that Mr.
Heyer doesn’t understand something.
THE COURT: Well, it’s a civil case. The
answer is no. We are not going to make this
into a marathon.
MS. GRAVES [Counsel for Heyer]: Thank you,
Your Honor.

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(J.A. 87.) According to Heyer, this statement by the district
court shows that it did not understand that the CIA applies to
civil and criminal cases without distinction. We disagree. The
district court merely indicated that, in the exercise of its
discretion under § 1827(k), it was less likely to grant such a
request in a civil case than in a criminal case. There was no
suggestion by the district court or the Government that the
court was without authority to grant the motion; only that it
chose not do so in this civil commitment case.5
Accordingly, we affirm the judgment of the district court
in denying Heyer’s request for consecutive interpretation.
5 Heyer also asserts that the district court’s refusal to
grant consecutive interpretation violated his due process
rights. As with his statutory argument under the CIA, however,
Heyer never objected to the district court’s denial of
consecutive interpretation below and raises this argument for
the first time on appeal. Moreover, as we have already pointed
out, the district court fully complied with 18 U.S.C. § 1827 and
made substantial accommodations to help Heyer understand the
proceedings. And, as also noted above, Heyer made no showing at
trial, or on appeal, of any actual prejudice. Heyer further
acknowledges that “his due process rights as a civil commitment
respondent are not as extensive as those afforded a criminal
defendant.” (Opening Br. 29 n.8.) We find Heyer’s due process
claim to be meritless.

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B.
Heyer next contends that the district court clearly erred
in finding him to be a “sexually dangerous person” under 18
U.S.C. § 4248.
To obtain a commitment order against Heyer, the Government
was required to establish three distinct facts by clear and
convincing evidence: that Heyer (1) “has engaged or attempted to
engage in sexually violent conduct or child molestation” in the
past, 18 U.S.C. § 4247(a)(5); (2) currently “suffers from a
serious mental illness, abnormality, or disorder”; and (3) as a
result of the illness, abnormality, or disorder, “would have
serious difficulty in refraining from sexually violent conduct
or child molestation if released,” 18 U.S.C. § 4247(a)(6); see
also United States v. Hall, 664 F.3d 456, 461 (4th Cir. 2012).
“[C]lear and convincing has been defined as 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.” Jiminez
v. DaimlerChrysler Corp., 269 F.3d 439, 450 (4th Cir. 2001)
(internal quotation marks, citations, and alterations omitted).
On appeal, we review the district court’s factual findings
for clear error and its legal conclusions de novo. See Fed. R.
Civ. P. 52(a)(6); Hall, 664 F.3d at 462. A finding is “clearly

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erroneous” only if “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. “This standard plainly
does not entitle a reviewing court to reverse the finding of the
trier of fact simply because it is convinced that it would have
decided the case differently.” Anderson v. City of Bessemer,
N.C., 470 U.S. 564, 573 (1985). “If the district court’s
account of the evidence is plausible in light of the record
viewed in its entirety, the court of appeals may not reverse it
even though convinced that had it been sitting as the trier of
fact, it would have weighed the evidence differently.” Id. at
573–74.
“When findings are based on determinations regarding the
credibility of witnesses,” we give “even greater deference to
the trial court’s findings.” Id. at 575. In particular,
“[e]valuating the credibility of experts and the value of their
opinions is a function best committed to the district courts,
and one to which appellate courts must defer,” and the Court
“should be especially 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).
We conclude that the district court did not clearly err in
finding Heyer to be a “sexually dangerous person” within the

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meaning of the Act because a review of the record demonstrates
that the court properly considered all of the relevant evidence—
including Heyer’s deafness and linguistic difficulties—to reach
the appropriate decision.
There is no dispute that Heyer engaged in past acts of
child molestation, as evidenced by his prior convictions. Thus,
the district court properly found that the Government
established the first element of sexual dangerousness by clear
and convincing evidence. See 18 U.S.C. § 4247(a)(5). The crux
of this issue, therefore, is whether the district court clearly
erred in finding that the Government proved, by clear and
convincing evidence, that Heyer suffers from pedophilia, “a
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” from
custody. 18 U.S.C. § 4247(a)(6). Specifically, Heyer contends
that the district court did not adequately take into
consideration his deafness and linguistic difficulties in
reaching its decision about whether or not he is a “sexually
dangerous person” within the meaning of the Act. A review of
the district court’s order, however, belies Heyer’s assertion.
The district court clearly considered Heyer’s deafness and
linguistic difficulties at length in reaching its Findings of
Fact and Conclusions of Law.

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Mr. Heyer was born prelingually and
profoundly deaf. Because of Mr. Heyer’s
unique circumstances and his severe deficits
in linguistic functioning, Dr. Jean Frances
Andrews, Director of Graduate Programs in
Deaf Education at Lamar University,
testified in regard to Mr. Heyer’s
linguistic competence. Dr. Andrews opined
in her report that Mr. Heyer’s reading level
was at grade level 2.8 and that he lacks the
advanced ASL skills required for interaction
beyond social settings. The Court credits
Dr. Andrews’ testimony that Mr. Heyer has
severe deficits in linguistic functioning.
For that reason, the Court does not rely in
its analysis on Mr. Heyer’s comprehension of
the book Slave Sons, depicting sadistic
sexual acts between a father and son, as Dr.
Andrews testified that the book was written
at grade level 7.8 and was well beyond Mr.
Heyer’s understanding.
(J.A. 525–26 (internal citations omitted).) The court went on:
The Court has also taken into account the
fact that Mr. Heyer’s “statements” in
clinical interviews are actually
translations provided by interpreters and
that some of the testifying psychologists
[Dr. Ross and Dr. Davis] have not had
experience in evaluating deaf individuals.
Despite these qualifiers, the Court remains
convinced that Mr. Heyer currently suffers
from pedophilia, and that he would have
serious difficulty in refraining from
sexually violent conduct or child
molestation if released.
(J.A. 526 (internal citations omitted).) These statements by
the district court indicate that it properly took into account
Heyer’s deafness and linguistic difficulties in evaluating the
evidence. Despite this factor, however, the court found the

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opinions of Dr. Ross and Dr. Davis to be more persuasive on the
determinative issues.
Further, a review of the entire record demonstrates that
the district court’s factual findings are not clearly erroneous.
To determine whether Heyer currently suffered from a serious
mental disorder, the district court properly quoted the criteria
set out in the American Psychiatric Association’s Diagnostic and
Statistical Manual of Mental Disorders, Fourth Edition, Text
Revision (“DSM-IV-TR”) concerning the definition of pedophilia.
The court went on to discuss the evaluations of all three
experts on this subject, including Dr. Heyer’s expert, Dr.
Lytton. In diagnosing Heyer with pedophilia, Dr. Davis placed
great weight upon Heyer’s history of molestation offenses
against prepubescent children, his possession of child
pornography, his demonstrated sexual arousal to prepubescent
males during a penile plethysmograph assessment, and his
acknowledged sexual attraction to male children. Dr. Ross cited
to Heyer’s self-report of engaging in pedophilic behaviors for a
period of at least thirteen years, a penile plethysmograph that
showed the greatest arousal response to males ages six to
eleven, and Heyer’s child pornography conviction. Finally, both
Dr. Davis and Dr. Ross opined that pedophilia tends to be a
chronic and life-long illness.

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In contesting the validity of the diagnosis, Dr. Lytton
reasoned that the penile plethysmograph tests produced results
that the examiners described as clinically insignificant, that
Heyer’s sexual offending pattern appears to have de-escalated as
evidenced by his last contact offense having occurred in 1993,
and that Heyer’s current sexual interests suggest that he is
interested in consensual adult homosexual activities.
The district court concluded that Dr. Ross’ and Dr. Davis’
opinions were well-reasoned, but that Dr. Lytton had “not
provided a persuasive justification as to why Mr. Heyer no
longer satisfies the relevant diagnostic criteria.”6 (J.A. 523.)
Absent evidence that Heyer’s pedophilia had “abated or
dissipated,” the district court concluded that the Government
had met its burden by clear and convincing evidence that Heyer
currently suffers from pedophilia. (J.A. 523.) On appeal,
Heyer has cited no evidence upon which we can conclude that the
opinions of Drs. Davis and Ross were unreasonable, and we thus
cannot say that the district court clearly erred in crediting
their opinions over Dr. Lytton’s.
6 Dr. Lytton acknowledged in her report that “Mr. Heyer’s
criminal history includes past behaviors that suggest he may
have met such criteria [for pedophilia] at that time.” (J.A.
631.) In other words, Dr. Lytton acknowledges that Heyer was
likely a pedophile in the past, but does not believe that he
currently meets the criteria for that diagnosis.

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The district court also properly considered the evidence
and weighed the testimony of the experts in finding that the
Government had established, by clear and convincing evidence,
that Heyer, as a result of pedophilia, “would have serious
difficulty in refraining from sexually violent conduct or child
molestation if released.” 18 U.S.C. § 4247(a)(6). The experts
considered actuarial tests, psychological tests, and Heyer’s
individual circumstances to make clinical judgments based upon
their evaluations. Viewed in light of his individual
circumstances and dynamic risk factors, the district court found
that Heyer’s “actuarial assessment results [we]re consistent
with his ongoing serious difficulty in refraining from sexually
violent conduct or child molestation.” (J.A. 525.) The
district court credited “the testimony and report of Dr. Davis,
who focused on Heyer’s impulsivity, poor sexual self-regulation,
and poor compliance with supervision when in the community,” as
well as the “evidence of Heyer’s ongoing sexual interest in
children, as noted by Dr. Ross.” (J.A. 525.) Heyer has failed
to show that the opinions of Drs. Davis and Ross were
unreasonable, and we therefore cannot say that the district
court clearly erred in crediting their opinions.
In sum, we conclude that the district court’s factual
findings are a permissible and reasonable interpretation of the
evidence presented at the hearing. Because we are not “left

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with the definite and firm conviction that a mistake has been
committed,” United States v. U.S. Gypsum Co., 333 U.S. 364, 395
(1948), we cannot say that the district court clearly erred in
finding that Heyer is a “sexually dangerous person” within the
meaning of the Act.
C.
Finally, Heyer contends that the district court erred in
rejecting his equal protection and due process claims.
Specifically, Heyer asserts that (1) section 4248 deprives him
of his right to equal protection because it draws an improper
classification by subjecting BOP individuals to § 4248
commitment while exempting all others under federal control; and
(2) the district court erred in holding that § 4248 is a civil,
rather than criminal, statute and consequently, the statute is
unconstitutional on the grounds that it fails to adequately
protect various rights afforded to criminal defendants.
Heyer’s claims are foreclosed by our decision in United
States v. Timms, 664 F.3d 436 (4th Cir. 2012), in which we
plainly rejected both of the above-mentioned claims.7 As one
panel of the Court may not overrule another panel, the Timms
7 Heyer acknowledges that his claims are foreclosed by
Timms, but nevertheless “raises them here as a good faith
argument for a change in the law and to preserve them for en
banc or Supreme Court review.” (Opening Br. 42.)

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decision is not reviewable unless a motion to rehear en banc is
granted. Gladhill v. Gen. Motors Corp., 743 F.2d 1049, 1050–51
(4th Cir. 1984) (“As a single panel of this court, we lack
authority to re-examine or to overrule [an existing decision in
the circuit] short of an intervening Supreme Court decision” or
en banc review.). Accordingly, we conclude that the district
court did not err in rejecting Heyer’s equal protection and due
process claims.
III.
For the foregoing reasons, we affirm the judgment of the
district court.
AFFIRMED

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