United States v. Icker (3rd Cir. September 2021)

The Federal Docket

October 5, 2021

Supervised Release/Sex Offenders – A district court cannot impose conditions of supervised release requiring a defendant to register as a sex offender under SORNA where they do not have a conviction for a “sex offense,” and a deprivation of an individual’s civil rights under 18 USC 242 is not such an offense even if the offense conduct involves sexual abuse.

Mark Icker was convicted under 18 USC 242 for depriving individuals of their civil rights under color of law. Specifically, Icker used his position as a police officer to coerce women into engaging in sexual conduct with him. As part of his conditions of supervised release, the district court ordered Icker to register as a sex offender and comply with the federal sex offender registry law, SORNA (Sexual Offense Registration and Notice Act).

On appeal, the Third Circuit reversed, holding that a conviction under 18 USC 242 is not categorically a “sex offense,” and as such, “a district court cannot discretionarily order a defendant who is not convicted of any ‘sex offender’ under SORNA to register under the statute.” Doing so is plain error, the Court concluded.

In explaining that the statute of conviction is not a sex offense, though it can be based on sexual conduct, the Court noted that Icker was never given notice of potential SORNA registration requirements. As such, the Court held his appellate waiver was not entered into knowingly and voluntarily. Moreover, to the extent the Government relied on the SORNA provision allowing third parties to require registration, this was a violation of the non-delegation doctrine.

On appeal from the Middle District of Pennsylvania
Opinion by Greenaway, joined by Hardiman and Bibas

Click here to read the opinion.

Tom Church - Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of "The Federal Docket" and is a contributor to Mercer Law Review's Annual Survey in the areas of federal sentencing guidelines and criminal law. Tom graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom's reviews on AVVO. Follow Tom on Linkedin.

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