PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 20-2632

_____________

UNITED STATES OF AMERICA

v.

MARK ERIC ICKER,

 Appellant

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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

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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] 
2

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.
3

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 
4

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 
5

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 
6

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)[.]
7

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 nonconstitutional[.]” App. 46 (emphasis added).
8

its broad language reaches the conditions ofsupervised 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 
9

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.
10

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;
11

(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. 
12

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 
13

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 lacksthe 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. 
14

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). 
15

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
16

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 
17

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 
18

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.