United States v. Mark Icker ( 2021 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 20-2632
_____________
UNITED STATES OF AMERICA
v.
MARK ERIC ICKER,
Appellant
______________
Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Criminal No. 3-19-cr-00338-001)
District Judge: Honorable Malachy E. Mannion
______________
Argued: March 24, 2021
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Before: HARDIMAN, GREENAWAY, JR., and BIBAS,
Circuit Judges.
(Opinion filed: September 14, 2021)
Heidi R. Freese
Frederick W. Ulrich [ARGUED]
Tammy L. Taylor
Office of Federal Public Defender
100 Chestnut Street
Suite 306
Harrisburg, PA 17101
Counsel for Appellant
David J. Freed
Stephen R. Cerutti, II
Office of United States Attorney
Middle District of Pennsylvania
228 Walnut Street, P.O. Box 11754
220 Federal Building and Courthouse
Harrisburg, PA 17108
Michelle L. Olshefski
Jeffery St. John [ARGUED]
Office of United States Attorney
235 North Washington Avenue
P.O. Box 309, Suite 311
Scranton, PA 18503
Counsel for Appellees
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OPINION
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GREENAWAY, JR., Circuit Judge.
2
As a police officer, Mark Icker used his badge to harass,
grope, and force oral sex on several women. Icker pled guilty
only to depriving individuals of their civil rights under color of
law, pursuant to 18 U.S.C. § 242. His convictions under § 242
are not “sex offenses” under the Sex Offender Registration and
Notification Act (“SORNA”), 34 U.S.C. § 20901 et seq.
Nevertheless, the District Court mandated that, as a condition
of his supervised release term, Icker “comply with the
requirements of [SORNA] as directed by the probation officer,
the Bureau of Prisons, or any state sex offender registration
agency in the location where [he] reside[s], work[s], [is] a
student, or [was] convicted of a qualifying offense.” App. 4.
But a district court cannot discretionarily order a defendant
who is not convicted of any “sex offense” under SORNA to
register under the statute. Any imposition of SORNA
registration requirements on such a defendant constitutes plain
error. This issue is the crux of this appeal.
We first determine that because Icker was not convicted
of any sex offenses, and because the record shows he was not
given notice of any potential SORNA registration
requirements, we will not enforce his appellate waiver as he
did not enter into it knowingly and voluntarily. Reaching the
merits of Icker’s claims, we hold that the District Court plainly
erred by mandating that Icker comply with SORNA
requirements. Icker was not convicted of any “sex offense”
under SORNA. Because SORNA does not extend to other
offenses, Icker cannot be subject to its terms. To the extent the
Government argues that because the District Court imposed
Icker’s registration “as directed” by a third party, any
delegation of Icker’s status as a “sex offender” to a third party
is an improper delegation of Article III powers. Therefore, we
will vacate the judgment of conviction and remand with
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directions to vacate the SORNA conditions of Icker’s
supervised release.
I. BACKGROUND
A. Factual Background
From March 2018 until his termination, Icker worked as
a part-time uniformed police officer in Luzerne and
Lackawanna counties in Pennsylvania. During this time, and
in his capacity as a police officer, Icker pulled over two
women—S.R., age 22, and R.V., age 32—while they were
driving alone during late night hours.
In both instances, Icker pulled over and detained the
women, claiming that they had violated vehicle codes and
appeared intoxicated or that he could smell marijuana. Icker
then handcuffed the women and searched their cars. During
the search of the cars, Icker claimed to find more incriminating
evidence—in one instance a pill bottle and in another,
marijuana.
Icker confronted both women with the items he found
in their cars and warned them that they would face
consequences as a result of further charges (both women had
previous involvement with the criminal justice system). He
then advised both women that those charges could put them in
violation of their supervision or bond, and that they could face
imprisonment.
Icker later asked each woman “How can you help me
help you?” or “What can you do for me to help you?” as a way
to ask for oral sex. PSR ¶ 5. Afterwards, in each instance,
Icker drove the victim’s car to a location out of view and
4
transported the victim in his police cruiser to a different
location—either a park or the police station bathroom. Icker
coerced both women into performing oral sex on him.
In addition to these two instances, Icker groped or
harassed three other women, using his authority as a police
officer.
B. Procedural Background
From December 2018 through April 2019, authorities
brought various charges against Icker. Icker later entered into
a written plea agreement (the “Plea Agreement”) under which
he agreed to plead guilty to two counts of depriving R.V. and
S.R. of their civil right to bodily integrity under
18 U.S.C. § 242. The Plea Agreement included several
sentencing guidelines references, including that the parties
jointly recommended a 144-month term of imprisonment. The
Plea Agreement also included several special conditions of
supervised release. There was no reference to SORNA
registration as a special condition in the Plea Agreement.
As part of the Plea Agreement, Icker also waived his
right to direct appeal:
28. Appeal waiver - Direct. The defendant is
aware that Title 28, United States Code, § 1291
affords a defendant the right to appeal a
judgment of conviction and sentence; and that
Title 18, United States Code, § 3742(a) affords a
defendant the right to appeal the sentence
imposed. Acknowledging all of this, the
defendant knowingly waives the right to appeal
the conviction and sentence. This waiver
5
includes any and all possible grounds for appeal,
whether constitutional or non-constitutional,
including, but not limited to, the manner in
which that sentence was determined in light of
United States v. Booker, 543 U.S. 220 (2005).
The defendant further acknowledges that this
appeal waiver is binding only upon the defendant
and that the United States retains its right to
appeal in this case.
App. 46.
The Government filed a two-count information in the
United States District Court for the Middle District of
Pennsylvania against Icker. Icker then appeared at a
sentencing hearing before the District Court, which rejected the
agreed upon 144-month term of imprisonment and instead
sentenced Icker to a 180-month term. At the sentencing
hearing, Icker did not object to the presentence report, which
listed SORNA registration as a condition of release, despite the
District Court’s invitation to do so. The District Court did not
mention SORNA during the sentencing hearing, but the Court
referenced SORNA twice in its judgment of conviction. First,
under “Mandatory Conditions,” the District Court checked the
following box:
You must comply with the requirements of the
Sex Offender Registration and Notification Act
(34 U.S.C. § 20901, et seq.) as directed by the
probation officer, the Bureau of Prisons, or any
state sex offender registration agency in the
location where you reside, work, are a student, or
were convicted of a qualifying offense. (check if
applicable)[.]
6
Id. at 4.
Second, the “Additional Supervised Release Terms,”
included the following:
You must comply with the requirements of the
Sex Offender Registration and Notification Act
(42 U.S.C. § 16901, et seq.) as directed by the
probation officer, the Bureau of Prisons, or any
state sex offender registration agency in the
location where you reside, work, are a student,
or were convicted of a qualifying offense[.]
Id. at 6.1
Icker then filed this timely appeal.
II. JURISDICTION
The District Court had jurisdiction under 18 U.S.C. §
3231. We have jurisdiction under 28 U.S.C. § 1291 and 18
U.S.C. § 3742(a).
III. APPELLATE WAIVER
Although Icker signed an appellate waiver, he contends
that the waiver does not preclude this Court’s review.2 The
Government argues that the appellate waiver applies given that
1 The Sex Offender Registration and Notification Act is now
located at 34 U.S.C. § 20901.
2 Icker’s waiver explicitly covered “the right to appeal the
conviction and sentence” including “any and all possible
grounds for appeal, whether constitutional or non-
constitutional[.]” App. 46 (emphasis added).
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its broad language reaches the conditions of supervised release.
Additionally, the Government contends that the waiver was
entered into knowingly and voluntarily given the language of
the waiver and the District Court’s colloquy with Icker. Our
review of the validity and scope of appellate waivers is plenary.
United States v. Jackson, 523 F.3d 234, 237 (3d Cir. 2008).
Waivers of appeal are generally permissible regardless
of the merits of the claim, and courts must construe them
strictly. United States v. Khattak, 273 F.3d 557, 558, 561–62
(3d Cir. 2001). We will generally decline to entertain an appeal
and will enforce an appellate waiver when “(1) . . . the issues
[the defendant] pursues on appeal fall within the scope of his
appellate waiver and (2) . . . he knowingly and voluntarily
agreed to the appellate waiver, unless (3) enforcing the waiver
would work a miscarriage of justice.” United States v. Wilson,
707 F.3d 412, 414 (3d Cir. 2013) (quoting United States v.
Dahmen, 675 F.3d 244, 249 (3d Cir. 2012)) (alteration in
original).
Thus, to determine whether an appellate waiver was
knowingly and voluntarily agreed to, we must look to the
context surrounding the defendant’s acceptance of the waiver.
See Khattak, 273 F.3d at 563. Here, Icker did not knowingly
and voluntarily agree to the waiver of this appeal. Thus, we
decline to enforce the waiver.3
3 Even if Icker’s appellate waiver was entered into knowingly
and voluntarily, and the scope of the waiver covered this
appeal, enforcing this waiver would be a miscarriage of justice.
See Khattak, 273 F.3d at 562. Here (1) the error was clear, as
discussed infra, (2) the error is grave, (3) the error presents a
legal question, not a fact question, (4) the error creates a
8
First, Icker’s Plea Agreement sets forth many special
conditions of supervised release but fails to make any reference
to SORNA registration. Because the Plea Agreement never
mentioned any SORNA requirements, and because Icker did
not plead guilty to any “sex offense” under SORNA as part of
that agreement, he had no reason to know that he would be
subject to SORNA. Second, while the District Court addressed
the appellate waiver with Icker during the plea colloquy, it did
so without specific reference to SORNA. 4
Thus, neither the terms of the Plea Agreement nor the
in-person colloquy mentioned or discussed a SORNA
registration condition. Moreover, this void in information and
notice establishes that Icker could not have understood that he
was waiving his right to appeal a SORNA registration
condition. The fact that Icker admitted to sexual conduct is not
burdensome obligation for Icker, and (5) the impact to the
Government in correcting this error would be minimal. See id.
at 563. Our case law favors reaching the merits.
4 During the plea colloquy, the District Court asked:
Do you also understand that under circumstances
normally you and/or the government would have
the right to appeal any sentence that is imposed
in the case, but as part of your plea agreement in
this case, you have agreed to waive or give up
your right to appeal the sentence? Do you
understand that?
App. 57. Icker affirmed that he understood. This was the
extent of the District Court’s discussion of the waiver with
Icker before he entered his plea. The District Court did not
discuss the breadth, scope, or covered conditions of his
supervised release.
9
enough for him to be on notice of potential SORNA
requirements when his Plea Agreement and plea colloquy did
not mention such additional conditions, and he had not been
convicted of any sex offenses under SORNA. As a result,
Icker’s appellate waiver does not apply on these facts, and we
will proceed to the merits of his appeal.
IV. SORNA REGISTRATION
A. SORNA
The United States Congress enacted the SORNA as
Title I of the Adam Walsh Child Protection and Safety Act of
2006. Congress passed SORNA “to protect the public from
sex offenders and offenders against children” by
“establish[ing] a comprehensive national system for the
registration of [sex] offenders.” 34 U.S.C. § 20901. SORNA
“reflects Congress’ awareness that pre-Act registration law
consisted of a patchwork of federal and 50 individual state
registration systems.” Reynolds v. United States, 565 U.S. 432,
435 (2012).
Consistent with its goals, SORNA registration
requirements apply to state and federal “sex offender[s].” See
34 U.S.C. §§ 20911, 20913. SORNA defines “sex offender”
to mean “an individual who [has been] convicted of a sex
offense.” Id. § 20911(1). With certain exceptions not
applicable here, SORNA defines “sex offense” to include:
(i) a criminal offense that has an element
involving a sexual act or sexual contact with
another;
(ii) a criminal offense that is a specified offense
against a minor;
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(iii) a Federal offense (including an offense
prosecuted under section 1152 or 1153 of title
18) under section 1591, or chapter 109A, 110
(other than section 2257, 2257A, or 2258), or
117, of title 18;
(iv) a military offense specified by the Secretary
of Defense under section 115(a)(8)(C)(i) of
Public Law 105-119 (10 U.S.C. 951 note); or
(v) an attempt or conspiracy to commit an
offense described in clauses (i) through (iv).
Id. at § 20911(5)(A).
SORNA specifies that all sex offenders “shall register,
and keep the registration current, in each jurisdiction where the
offender” lives, works, or attends school. Id. § 20913(a).
When an offender changes his name, residence, employment,
or student status, within three business days the offender must
appear in person in at least one jurisdiction where the offender
lives, works, or is a student to notify that jurisdiction of the
change in registration information. Id. § 20913(c). SORNA
also requires that the jurisdiction receiving this information
immediately provide it to all other jurisdictions in which the
offender must register to achieve a comprehensive national
registry. Id. Failure to comply with SORNA can lead to
criminal penalties. Id. § 20913(e); see 18 U.S.C. § 2250(a).
B. The District Court Committed Plain Error
We review a district court’s decision to impose a
condition of supervised release for abuse of discretion. United
States v. Loy, 237 F.3d 251, 256 (3d Cir. 2001). When,
however, a defendant fails to object to a specific condition at
sentencing, as is the case here, we review for plain error.
11
United States v. Maurer, 639 F.3d 72, 77 (3d Cir. 2011). The
Supreme Court has described a four-part inquiry for plain-error
review under Federal Rule of Criminal Procedure 52(b):
“[t]here must (1) be an ‘error’ that (2) is ‘plain’ and (3) ‘affects
substantial rights’” of the defendant. United States v. Williams,
974 F.3d 320, 340 (3d Cir. 2020) (quoting United States v.
Olano, 507 U.S. 725, 732 (1993)). “If these three conditions
are satisfied, then it is within the sound discretion of the court
of appeals to correct the forfeited error—but only if (4) the
error seriously affects the fairness, integrity or public
reputation of judicial proceedings.” Id. (quotation marks
omitted) (quoting Olano, 507 U.S. at 732).
a. A Defendant Who Is Not Convicted of a Sex Offense
Cannot Be Subject to SORNA’s Registration Requirements
Icker’s convictions for depriving individuals of their
civil rights under color of law, pursuant to 18 U.S.C. § 242, are
not “sex offenses” under SORNA. 5 However, the Government
5 During oral argument, the Government asserted that a
conviction under 18 U.S.C. § 242 could be a sex offense.
Given that this conviction is not an enumerated offense under
34 U.S.C. § 20911(5)(A), the criminal offense must be one that
“has an element involving a sexual act or sexual contact with
another.” 34 U.S.C. § 20911(5)(A)(i). Section 242 of Title 18
of the United States Code requires only that, under color of
law, Icker willfully deprived a victim of her liberty without due
process of law, which includes the right to bodily integrity. 18
U.S.C. § 242; see United States v. Shaw, 891 F.3d 441, 446–
47 (3d Cir. 2018). The Government asks us to read the statute
broadly and assume that because Icker’s criminal conduct was,
in part, sexual, we should find that his convictions constitute a
“sex offense.” But to do so would read the statute so broadly
12
argues that because the conduct of Icker’s criminal acts is
“‘reasonably related’ to the sexual abuse of women,” the
District Court did not err by choosing to discretionarily impose
SORNA registration requirements. Appellee’s Br. 23. We
agree with Icker that because he was not convicted of a “sex
offense” under SORNA, the District Court cannot impose
SORNA requirements. The District Court’s imposition here
was thus error, and plainly so, because it contradicted the
language of the statute and it affected Icker’s substantial rights.
A district court lacks the authority to require a defendant
to register under SORNA if he or she has not been convicted
of a “sex offense,” as defined by 34 U.S.C. § 20911(5)(A).
The Government maintains that, while SORNA “certainly
defines what constitutes a ‘sex offense,’ nothing in SORNA’s
statutory scheme limits registration to only those convicted of
such offenses.” Appellee’s Letter Br. 2 (emphasis added).
Thus, the Government asserts there are instances in which
SORNA registration may not be required under the statute, but
a sentencing court can find that it is still warranted and can
impose SORNA registration requirements at its discretion. We
reject this interpretation and application of SORNA.
First, by its terms, SORNA is limited to sex offenses.
See United States v. Brown, 740 F.3d 145, 147 (3d Cir. 2014)
(“Congress was careful to delineate specific circumstances in
which a conviction involving sex will not lead to classification
as an offender under SORNA.”). Here, the District Court
plainly erred when it expanded the scope of SORNA, applying
as to include crimes such as battery, which can involve no
sexual conduct. Further, such determinations should be left to
a jury or fact finder, not assumed to exist based on the facts on
appeal.
13
it to a defendant who was never convicted of a “sex offense”
as defined by SORNA itself, as the language of the statute is
clear as to its limited scope.
As discussed, SORNA defines “sex offense” to include
specific enumerated offenses or “a criminal offense that has an
element involving a sexual act or sexual contact with another.”
34 U.S.C. § 20911(5)(A). Icker was convicted of depriving
individuals of their civil rights under color of law in violation
of 18 U.S.C. § 242. This crime does not fall within the scope
of § 20911(5)(A), which clearly enumerates crimes or requires
that an element of the crime involve sexual conduct.
Second, while a district court has broad discretion to
impose conditions of supervised release pursuant to 18 U.S.C.
§ 3583, this power is limited by statute, and SORNA
registration is specifically limited to those required by the
statute to comply. Pursuant to § 3583, in exercising its
discretion, the district court’s conditions must (1) be
“reasonably related” to the sentencing factors of § 3553, (2)
“involve[] no greater deprivation of liberty than is reasonably
necessary for [those] purposes,” and (3) be “consistent with
any pertinent policy statements issued by the Sentencing
Commission.”6 18 U.S.C. § 3583(d)(1)–(3).
6 Nothing prevents a district court from using its authority to
impose other conditions that would also likely be given to a sex
offender, such as counselling, therapy, or mental health
evaluations. See, e.g., Wilson, 707 F.3d at 416 (affirming a
district court’s condition requiring a mental health assessment,
and, if necessary, a mental health treatment program, for a
defendant who pleaded guilty to drug charges).
14
Section 3583(d), however, makes two explicit
references to SORNA: that (1) “[t]he court shall order, as an
explicit condition of supervised release for a person required
to register under [SORNA], that the person comply with the
requirements of that Act,” and that (2) “the court may order, as
an explicit condition of supervised release for a person who is
a felon and required to register under [SORNA], that the
person submit” his or her person, residence, and property to
searches by various officials. Id. at. § 3583(d) (emphasis
added). This language carries over to other sections of the
statute—first, concerning when “a defendant required to
register under [SORNA]” commits certain crimes, id. at §
3583(k), and second, concerning whether the court may
impose additional conditions “if [the defendant is] required to
register under [SORNA],” id. at § 3563(b)(23) (emphasis
added).
To read § 3583 to also allow district courts to impose
SORNA compliance on persons not required to register by the
terms of SORNA itself would make these references
superfluous. See United States v. Cooper, 396 F.3d 308, 312
(3d Cir. 2005) (“It is a well known canon of statutory
construction that courts should construe statutory language to
avoid interpretations that would render any phrase
superfluous.”).
It is not within a district court’s power to broaden a
statute and its application, but even if it could do so, SORNA
could not be practically imposed on a person who has not been
convicted of a sex offense. Individuals required to register for
SORNA are subject to its requirements for a term of years or
for life based on the “tier” that their offense falls within. 34
U.S.C. § 20915(a) (noting a tier I sex offender must register for
fifteen years, a tier II sex offender must register for twenty-five
15
years, and a tier III sex offender must register for life). If there
is no “sex offense” to tie the registration to, the text of SORNA
does not dictate the duration of required registration. Thus, if
SORNA were allowed to be imposed on non-sex offenders,
how long must they register for? The answer is unclear. In
following the Government’s argument, a defendant convicted
of a lesser offense could ostensibly be given lifetime
registration requirements despite SORNA’s specific intent to
limit registration based on the severity of the offense. See id.Thus, the plain language of SORNA does not anticipate any
discretionary application of its requirements.
We therefore conclude that a discretionary imposition
of SORNA on non-sex offenders is plainly erroneous.
b. The Judgment of Conviction Required Registration
The Government also maintains that the District Court
did not mandate a SORNA registration requirement, and thus
Icker cannot appeal the District Court’s judgment of
conviction. According to the Government, the District Court
did “not simply say ‘You must register as a sex offender
pursuant to SORNA’” but instead “impose[d] a conditional
directive to comply with SORNA only ‘as directed by the
probation officer, the Bureau of Prisons, or any state sex
offender registration agency.’” Appellee’s Br. 19 (emphasis in
original). The Government asserts that because registration
under SORNA was conditional on a determination by third
parties, this Court has no basis to review. We disagree.
The governing statutory language provides that:
The court shall order, as an explicit condition of
supervised release for a person required to
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register under the Sex Offender Registration and
Notification Act, that the person comply with the
requirements of that Act.
18 U.S.C. § 3583(d) (emphasis added). The plain language of
the statute requires that a court determine whether the
defendant has been convicted of “sex offense” as defined in 34
U.S.C. § 20911(5)(A), which is appropriate because the
question of whether an offense is a “sex offense” is one of law.
See Brown, 740 F.3d at 149.
Further, the language of the judgment of conviction
states that Icker “must comply with the requirements of
[SORNA] as directed by the probation officer, the Bureau of
Prisons, or any state sex offender registration agency in the
location where you reside, work, are a student, or were
convicted of a qualifying offense.” App. 4 (emphasis added);
see also App. 6. While it is true that these third parties would
dictate the actual procedures Icker must follow, the District
Court still is not conditionally requiring him to comply with
SORNA.
If we were to take the Government’s view of “must
comply as directed,” we would be impermissibly placing the
legal analysis of determining what constitutes a “sex offense”
with the probation office, the Bureau of Prisons, or state
agencies, which would establish an impermissible delegation
of Article III powers. See United States v. Pruden, 398 F.3d
241, 251 (3d Cir. 2005) (explaining that it is “‘an
impermissible delegation of judicial authority’” to allow the
probation office to determine whether a defendant is required
to undergo mental health intervention, but it is permissible to
delegate to the probation office “‘the details with respect to the
selection and schedule of the program’” (quoting United States
17
v. Peterson, 248 F.3d 79, 85 (2d Cir. 2001)); Loy, 237 F.3d at
266 (noting that a “sentencing court may not wholesaledly
‘abdicate[] its judicial responsibility’ for setting the conditions
of release” by having the probation office determine what the
word “pornography” entails) (quoting United States v.
Mohammad, 53 F.3d 1426, 1438 (7th Cir. 1995)) (alteration in
original). It is not permissible to give a “probation officer an
unfettered power of interpretation.” Loy, 237 F.3d at 266.
Accepting the Government’s position would be an
extraordinary delegation of power to probation offices, who
are in the business of executing and implementing judicial
orders, not analyzing, evaluating and making legal
determinations on questions of law, and other such parties.7
Because it is beyond the power of Article III courts to delegate
the duty of determining who is a sex offender to the probation
office, Bureau of Prisons or state agency, we find this argument
unavailing.
V. CONCLUSION
For these reasons, we will vacate the District Court’s
judgment of conviction and remand with directions to modify
the District Court’s Judgment to remove the SORNA-related
conditions.
7 The Government’s position is further weakened when testing
its practicality. The Government posits that Icker should wait
to appeal this point until after the probation office, Bureau of
Prisons, or a state agency orders compliance with SORNA.
Certainly waiver would be a difficult, if not insurmountable,
barrier to relief at that point. Not surprisingly, the Government
chose not to opine on this point.
18