Petition for Writ of Certiorari — Nima Nazerzadeh, Petitioner v. United States

No.-_____

IN THE

SUPREME COURT OF THE UNITED STATES

NIMA NAZERZADEH,

-v-

Petitioner,

UNITED STATES OF AMERICA,

____________________

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

PETITION FOR WRIT OF CERTIORARI

____________________

SHAUN KHOJAYAN

Counsel of Record

LAW OFFICES OF SHAUN KHOJAYAN

& ASSOCIATES, P.L.C.

515 S. Flower St., 19th Floor

Los Angeles, California 90071

Telephone: (310) 274-6111

shaun@khojayan.com

Counsel for Petitioner Nima Nazerzadeh

LEGAL PRINTERS LLC ! Washington, DC ! 202-747-2400 ! legalprinters.com

i

QUESTION PRESENTED FOR REVIEW

1.

Whether the United States Court of Appeals for

the Fifth Circuit’s reversal of the district court’s

order terminating petitioner’s sex offender

registration and instead finding petitioner to be

a tier II sex offender was erroneous as a result

of its reading 34 U.S.C. § 20911 in the

disjunctive, which conflicts with the rules and

canons of statutory construction relied upon in

several decisions of this Court, including that a

plain reading of § 20911(3)(A)(iv) does not

include an “or” at the end of that subsection.

ii

STATEMENT OF RELATED CASES

The proceedings identified below are directly

related to the above-captioned case in this Court.



United States v. Nima Nazerzadeh, No. 4:06CR-30-1, U.S. District Court for the Southern

District of Texas, Houston Division. Order

entered April 15, 2022.



United States v. Nima Nazerzadeh, No. 2220238, U.S. Court of Appeals for the Fifth

Circuit, Judgment entered July 11, 2023.

iii

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW ................ i

STATEMENT OF RELATED CASES ...................... ii

TABLE OF CONTENTS ........................................... iii

TABLE OF AUTHORITIES ...................................... v

OPINION BELOW..................................................... 1

JURISDICTION......................................................... 1

STATUTORY PROVISIONS ..................................... 2

STATEMENT OF THE CASE ................................... 6

REASONS FOR GRANTING THE PETITION ........ 9

I. UNDER STATUTORY CONSTRUCTION

DECISIONS OF THIS COURT AND A PLAIN

READING OF 34 U.S.C. § 20911(3),

PETITIONER WAS A TIER I SEX

OFFENDER AND THUS ELIGIBLE TO

REDUCE

AND

TERMINATE

HIS

REGISTRATION -- AS THE DISTRICT

COURT HAD CORRECTLY RULED .................. 9

A. Title 34 U.S.C. § 20911(3) Plainly Reads

That to Be a Tier II Offender, the Offense

Must Be One Listed in (3)(A) That

Involves (3)(B) or (3)(C); not an Offense

Listed in (3)(A) or (3)(B) or (3)(C) ................ 9

iv

B. The Rule of the Last Antecedent Dictates

That the “Or” at the End of 34 U.S.C. §

20911(3)(B)(iii) Does Not Also Apply to the

Subsection Before It, 34 U.S.C. §

20911(3)(A)(iv) ............................................ 13

C. The Fifth Circuit’s Disjunctive Reading of

34 U.S.C. § 20911(3) Leads to an Absurd

Result .......................................................... 16

D. The Fifth Circuit’s Reading of 34 U.S.C. §

20911(3) Also Violates the Surplusage

Canon .......................................................... 17

CONCLUSION......................................................... 18

APPENDIX

A. United States Court of Appeals, Fifth Circuit,

Memorandum, Dated July 11, 2023 ........... App. 1

B. United States District Court, Southern District

of Texas, Houston Division, Order, Dated April

15, 2022 ...................................................... App. 15

v

TABLE OF AUTHORITIES

Cases

Arcadia v. Ohio Power Co., 498 U.S. 73 (1990) ....... 16

Barnhart v. Sigmon Coal Co., Inc., 534 U.S. 438

(2002) ..................................................................... 11

Barnhart v. Thomas, 540 U.S. 20 (2003) ........... 13, 14

BFP v. Resolution Tr. Corp., 511 U.S. 531 (1994) ... 17

Caminetti v. United States, 242 U.S. 470 (1917) ..... 12

Conn. Nat’l Bank v. Germain, 503 U.S. 249 (1992) . 11

Consumer Prod. Safety Comm'n v. GTE Sylvania,

Inc., 447 U.S. 102 (1980) ......................................... 9

Cyan, Inc. v. Beaver Cnty. Emps. Ret. Fund, 138 S.

Ct. 1061 (2018) ...................................................... 14

Dolan v. U.S. Postal Serv., 546 U.S. 481 (2006) ...... 12

FTC v. Mandel Brothers, Inc., 359 U.S. 385 (1959). 14

In re Haas, 48 F.3d 1153 (11th Cir. 1995) ............... 11

Jama v. Immigr. & Customs Enf’t, 543 U.S. 335

(2005) ..................................................................... 14

Lamie v. United States Trustee, 540 U.S. 526

(2004) ..................................................................... 17

Lockhart v. United States, 577 U.S. 347 (2016) . 13, 14

Michigan v. Bay Mills Indian Cmty., 134 S. Ct. 2024

(2014) ..................................................................... 16

Nobelman v. American Savings Bank, 508 U.S. 324

(1993) ..................................................................... 13

vi

Russello v. United States, 464 U.S. 16 (1983) .......... 16

Sims Lessee v. Irvine, 3 Dall. 425 (1799).................. 14

United States v. Hodge, 321 F.3d 429

(3d Cir. 2003) ......................................................... 14

United States v. Locke, 471 U.S. 84 (1985) .............. 11

United States v. Morales, 801 F.3d 1

(1st Cir. 2015) ........................................................ 15

United States v. Sisson, 399 U.S. 267 (1970) ........... 18

United States v. White, 782 F.3d 1118

(10th Cir. 2015) ..................................................... 15

Statutes

18 U.S.C. § 1591 ........................................................ 10

18 U.S.C. § 2244 ........................................................ 10

18 U.S.C. § 2252A(a)(2)(b) .......................................... 6

18 U.S.C. § 2252A(b)(2) .............................................. 6

18 U.S.C. § 2422(b) ................................................... 10

18 U.S.C. § 2423(a) ................................................... 10

21 U.S.C. § 802(32)(A) .............................................. 14

28 U.S.C. § 1254(1) ..................................................... 1

34 U.S.C. § 20911 ............................................ 1, 2, 6, 9

34 U.S.C. § 20911(3) ....... 6, 7, 9, 11, 12, 15, 16, 17, 18

34 U.S.C. § 20911(3)(A)(iv) ......................... 6, 7, 11, 18

34 U.S.C. § 20911(3)(B)(iii) ................................... 7, 13

34 U.S.C. § 20915 ........................................................ 3

vii

34 U.S.C. § 20915(b) ............................................... 1, 6

Other Authorities

2A N. Singer, Sutherland on Statutory Construction

§ 47.33 (6th rev. ed. 2000) ............................... 13, 14

A. Scalia & B.A. Garner, Reading Law: The

Interpretation of Legal Texts (2012) ... 11, 12, 14, 17

Black’s Law Dictionary (10th ed. 2014) ................... 13

1

PETITION FOR WRIT OF CERTIORARI

Petitioner Nima Nazerzadeh respectfully prays

that a writ of certiorari issue to review the judgment

of the United States Court of Appeals for the Fifth

Circuit entered on July 11, 2023.

OPINION BELOW

On July 11, 2023, the United States Court of

Appeals for the Fifth Circuit issued a published

decision reversing the district court’s granting of

petitioner’s motion to terminate his federal sex

offender registration requirement. Contrary to the

district court’s decision, the Fifth Circuit Court of

Appeals found that petitioner was not a tier I sex

offender but instead a tier II sex offender under 34

U.S.C. § 20911. As a result, petitioner’s registration

was extended to 25 years and not reduced for his clean

record under 34 U.S.C. § 20915(b), which is available

to tier I sex offenders, and terminated. See Appendix

A.

JURISDICTION

On July 11, 2023, the United States Court of

Appeals for the Fifth Circuit entered its decision

reversing the district court’s granting of petitioner’s

motion to reduce and terminate his federal sex

offender registration under 34 U.S.C. §§ 20911,

20915(b). This Court has jurisdiction under 28 U.S.C.

§ 1254(1).

2

STATUTORY PROVISIONS

34 U.S.C. § 20911 (2006):

…

(2) Tier I sex offender

The term “tier I sex offender” means a

sex offender other than a tier II or tier III

sex offender.

(3) Tier II sex offender

The term “tier II sex offender” means a

sex offender other than a tier III sex

offender whose offense is punishable by

imprisonment for more than 1 year

and—

(A) is comparable to or more severe

than the following offenses, when

committed against a minor, or an

attempt or conspiracy to commit such

an offense against a minor:

(i) sex trafficking (as described in

section 1591 of title 18);

(ii) coercion and enticement (as

described in section 2422(b) of

title 18);

(iii) transportation with intent to

engage in criminal sexual activity

(as described in section 2423(a)) of

title 18);

3

(iv) abusive sexual contact (as

described in section 2244 of title

18);

(B) involves—

(i) use of a minor in a sexual

performance;

(ii) solicitation of a minor to

practice prostitution; or

(iii) production or distribution of

child pornography; or

(C) occurs after the offender becomes

a tier I sex offender.

….

34 U.S.C. § 20915 (2023):

(a) Full registration period

A sex offender shall keep the registration

current for the full registration period

(excluding any time the sex offender is in

custody or civilly committed) unless the

offender is allowed a reduction under

subsection (b). The full registration period is—

(1) 15 years, if the offender is a tier I sex

offender;

(2) 25 years, if the offender is a tier II sex

offender; and

(3) the life of the offender, if the offender is

a tier III sex offender.

4

(b) Reduced period for clean record

(1) Clean record

The full registration period shall be reduced

as described in paragraph (3) for a sex

offender who maintains a clean record for

the period described in paragraph (2) by—

(A) not being convicted of any offense for

which imprisonment for more than 1

year may be imposed;

(B) not being convicted of any sex

offense;

(C) successfully completing any periods

of supervised release, probation, and

parole; and

(D) successfully completing of an

appropriate sex offender treatment

program certified by a jurisdiction or by

the Attorney General.

(2) Period

In the case of—

(A) a tier I sex offender, the period

during which the clean record shall be

maintained is 10 years; and

(B) a tier III sex offender adjudicated

delinquent for the offense which

required registration in a sex registry

under this subchapter, the period during

which the clean record shall be

maintained is 25 years.

5

(3) Reduction

In the case of—

(A) a tier I sex offender, the reduction is

5 years;

(B) a tier III sex offender adjudicated

delinquent, the reduction is from life to

that period for which the clean record

under paragraph (2) is maintained.

6

STATEMENT OF THE CASE

Petitioner Nazerzadeh pled guilty in 2006 in

the Southern District of Texas to one count of

possession of child pornography (18 U.S.C. §

2252A(b)(2)) and two counts of distribution of child

pornography (18 U.S.C. § 2252A(a)(2)(b)). The district

court sentenced petitioner to 60 months in custody

and supervised release. At his sentencing, the district

court did not announce Mr. Nazerzadeh’s sex offender

registration tier.

In 2022, 12 years after his release from custody,

petitioner moved to reduce and terminate his federal

sex offender registration under 34 U.S.C. §§ 20911,

20915(b). Petitioner argued that under § 20911, he

was a tier I offender who should have his registration

reduced under § 20915(b) because of his clean record

and maintained registration since his release from

custody.

Specifically, petitioner argued that he was a

tier I offender by default because to be a tier II

offender § 20911(3) plainly reads that the offense

must be one listed in (3)(A) that involves (3)(B) or (C);

not an offense listed in (3)(A) or (3)(B) or (3)(C).

Indeed, Congress did not include the word “or” at the

end of § 20911(3)(A)(iv).

In opposition, the government argued that

petitioner was a tier II offender who should register

for 25 years and, as a tier II offender, he was not

eligible for a reduction under § 20915(b). The

government did not dispute that he had maintained a

clean record.

7

Rejecting the government’s position, the

district court agreed with petitioner, granted his

motion and terminated his sex offender registration.

The Fifth Circuit Court of Appeals reversed the

district court. The Fifth Circuit read all of § 20911(3)

in the disjunctive, even though Congress did not

include an “or” at the end of § 20911(3)(A)(iv). Having

read the statute in the disjunctive, the Fifth Circuit

ruled that petitioner was a tier II offender because his

convictions satisfied § 20911(3)(B)(iii). See App. 5.

However, the Fifth Circuit’s interpretation was

erroneous because Congress did not place an “or” at

the end of § 20911(3)(A)(iv) and a plain reading of the

unambiguous statute required an offender to satisfy

3(A) and 3(B) or 3(C) to be a tier II offender.

Worse, although agreeing that the statute was

unambiguous, to support its reading, the Fifth Circuit

relied on the Sex Offender Registration and

Notification Act’s (SORNA) purpose in “ensnaring” as

many offenders as possible to register – ignoring the

fact that petitioner already had registered for over 11

years.

The Fifth Circuit having read in an “or” at the

end of § 20911(3)(A)(iv) where one did not exist and,

thus, reading the entire section in the disjunctive,

certiorari is necessary to correct this important

federal question. The published Opinion of the Fifth

Circuit directly conflicts with several rules and

canons of statutory construction announced in

decisions of this Court.

8

Further, the Fifth Circuit’s erroneous

interpretation of the statute in question would result

in the improper, higher tier designation of numerous

tier I offenders and cause years of sex offender

registration beyond the time Congress had plainly

written. In fact, the Fifth Circuit’s misreading of the

statute resulted in extending petitioner’s sex offender

registration for an additional 14 years in addition to

the 11 years he had already registered.

9

REASONS FOR GRANTING THE PETITION

I. UNDER

STATUTORY

CONSTRUCTION

DECISIONS OF THIS COURT AND A PLAIN

READING OF 34 U.S.C. § 20911(3), PETITIONER

WAS A TIER I SEX OFFENDER AND THUS

ELIGIBLE TO REDUCE AND TERMINATE HIS

REGISTRATION -- AS THE DISTRICT COURT

HAD CORRECTLY RULED

A. Title 34 U.S.C. § 20911(3) Plainly Reads

That to Be a Tier II Offender, the Offense

Must Be One Listed in (3)(A) That Involves

(3)(B) or (3)(C); not an Offense Listed in

(3)(A) or (3)(B) or (3)(C)

“[T]he starting point for interpreting a statute

is the language of the statute itself.” Consumer Prod.

Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102,

108 (1980).

Here, in pertinent part, 34 U.S.C. § 20911

reads:

(2) Tier I sex offender

The term “tier I sex offender” means a

sex offender other than a tier II or tier III

sex offender.

(3) Tier II sex offender

The term “tier II sex offender” means a

sex offender other than a tier III sex

offender whose offense is punishable by

imprisonment for more than 1 year

and—

10

(A) is comparable to or more severe

than the following offenses, when

committed against a minor, or an

attempt or conspiracy to commit such

an offense against a minor:

(i) sex trafficking (as described in

section 1591 of title 18, United

States Code [18 U.S.C. § 1591]);

(ii) coercion and enticement (as

described in section 2422(b) of

title 18, United States Code [18

U.S.C. § 2422(b)]);

(iii) transportation with intent to

engage in criminal sexual activity

(as described in section 2423(a)[)]

of title 18, United States Code [18

U.S.C. § 2423(a)][)];

(iv) abusive sexual contact (as

described in section 2244 of title

18, United States Code [18 U.S.C.

§ 2244]);

(B) involves—

(i) use of a minor in a sexual

performance;

(ii) solicitation of a minor to

practice prostitution; or

(iii) production or distribution of

child pornography; or

11

(C) occurs after the offender becomes

a tier I sex offender.

(emphasis added).

Congress did not include the word “or” at the

end of 34 U.S.C. § 20911(3)(A)(iv). Therefore, under a

plain reading of the statute, a tier II offender must be

one whose offense is punishable by imprisonment for

more than 1 year and an offense comparable to or

more severe than the offenses listed in (A) that

involves use of a minor as listed in (B) or (C) occurs

after the offender becomes a tier I sex offender.

This Court has “stated time and time again

that courts must presume that a legislature says in a

statute what it means and means in a statute what it

says there. When the words of a statute are

unambiguous, then, this first canon is also the last:

judicial inquiry is complete.” Barnhart v. Sigmon Coal

Co., Inc., 534 U.S. 438, 461–62 (2002) (quoting Conn.

Nat’l Bank v. Germain, 503 U.S. 249, 253–54 (1992)).

“[A] literal reading of Congress’ words is generally the

only proper reading of those words.” United States v.

Locke, 471 U.S. 84, 93 (1985). “Where Congress knows

how to say something but chooses not to, its silence is

controlling.” In re Haas, 48 F.3d 1153, 1156 (11th Cir.

1995)).

The legal system relies upon a “sound

approach” in interpreting legal texts. A. Scalia & B.A.

Garner, Reading Law: The Interpretation of Legal

Texts 3 (2012). “Interpretation of a word or phrase

depends upon reading the whole statutory text,

considering the purpose and context of the statute,

and consulting any precedents or authorities that

12

inform the analysis.” Dolan v. U.S. Postal Serv., 546

U.S. 481, 486 (2006).

“The ordinary-meaning rule is the most

fundamental semantic rule of interpretation” and

“[i]nterpreters should not be required to divine arcane

nuances or to discover hidden meanings.” Scalia &

Garner, supra, at 69). “[T]he meaning of the statute

must, in the first instance, be sought in the language

in which the act is framed, and if that is plain…the

sole function of the courts is to enforce it according to

its terms.” Caminetti v. United States, 242 U.S. 470,

485 (1917). In essence, “[w]ords are to be understood

in their ordinary, everyday meanings—unless the

context indicates that they bear a technical sense.”

Scalia & Garner, supra, at 69.

Here, Congress wrote § 20911(3) to read that to

be a tier II offender, the offense must be one that is

described in (A) that involves the use of children as

described in (B) or (C) after the person is already a tier

I offender. A common, everyday reading of the

language used in § 20911(3) shows that Congress did

not proscribe that a tier II offender must be one who

was convicted of an offense that is listed in (A), or an

offense that involves children as described in (B) or

(C).

13

B. The Rule of the Last Antecedent Dictates

That the “Or” at the End of 34 U.S.C. §

20911(3)(B)(iii) Does Not Also Apply to the

Subsection Before It, 34 U.S.C. §

20911(3)(A)(iv).

Under the “rule of the last antecedent,”

according to which a limiting clause or phrase (here,

the “or” at the end of § 20911(3)(B)(iii) (“(iii)

production or distribution of child pornography; or”)

should be read as modifying only the noun or phrase

that it immediately follows and not the other clauses

before it that did not contain “or” at the end of those

clauses. See 2A N. Singer, Sutherland on Statutory

Construction § 47.33, p. 369 (6th rev. ed. 2000)

(“Referential and qualifying words and phrases,

where no contrary intention appears, refer solely to

the last antecedent”).

This Court has said that construing a statute in

accord with the rule of the last antecedent is “quite

sensible as a matter of grammar.” Nobelman v.

American Savings Bank, 508 U.S. 324, 330 (1993).

“When this Court has interpreted statutes that

include a list of terms or phrases followed by a limiting

clause, we have typically applied an interpretive

strategy called the ‘rule of last antecedent’ [which]

provides that ‘a limiting clause or phrase...should

ordinarily be read as modifying only the noun or

phrase that it immediately follows.’” Lockhart v.

United States, 577 U.S. 347, 351 (2016) (quoting

Barnhart v. Thomas, 540 U.S. 20, 26 (2003)). See also

Black’s Law Dictionary 1532–1533 (10th ed. 2014)

(“[Q]ualifying words or phrases modify the words or

14

phrases immediately preceding them and not words or

phrases more remote, unless the extension is

necessary from the context or the spirit of the entire

writing”); Scalia & Garner, supra, at 144.

This Court has applied the rule from its earliest

decisions to its more recent. See, e.g., Sims Lessee v.

Irvine, 3 Dall. 425, 444, n. (1799); FTC v. Mandel

Brothers, Inc., 359 U.S. 385, 389, n. 4 (1959);

Barnhart, 540 U.S. at 26.

The rule is triggered “when a modifier appears

at the end of a list...particularly true where it takes

more than a little mental energy to process the

individual entries in the list, making it a heavy lift to

carry the modifier across them all.” Lockhart, 577 U.S.

at 351-52. The rule “would not be appropriate where

the ‘modifying clause appear[s] . . . at the end of a

single, integrated list.’” Id. at 355 (quoting Jama v.

Immigr. & Customs Enf’t, 543 U.S. 335, 344-45 n.4

(2005)). The rule of last antecedent helps courts to

avoid “‘stretch[ing] [] the modifier too far’ by asking it

to qualify a remote or otherwise disconnected phrase.”

Cyan, Inc. v. Beaver Cnty. Emps. Ret. Fund, 138 S. Ct.

1061, 1077 (2018) (quoting Jama, 543 U.S. at 342).

As well, the Third Circuit in United States v.

Hodge, 321 F.3d 429, 433 (3d Cir. 2003), applied the

rule of the last antecedent in a similarly worded

statute to find that the “or” between clauses (ii) and

(iii) in 21 U.S.C. § 802(32)(A) is absent between

clauses (i) and (ii) and, therefore “we do not find

conclusive evidence for a disjunctive reading.” Id. at

436. See also Singer, supra, at § 47.33.

15

While Mr. Nazerzadeh’s convictions included

distributing child pornography, which is listed in

(3)(B), his offenses did not fall under any of the

categories listed in (3)(A), i.e., his offenses were not

comparable or more severe than any sex trafficking,

coercion/enticement, transportation with intent to

engage in criminal sexual activity, or abusive sexual

contact of any minor. The factual basis neither of his

guilty plea nor his Presentence Investigation Report

described Mr. Nazerzadeh in any sex trafficking,

coercion/enticement, transportation with intent to

engage in criminal sexual activity, or abusive sexual

contact of any minor. ROA.198-201, 573-579.

At least two other circuit courts of appeal have

interpreted tier II sex offender classification to

require more than only having been convicted of an

offense listed in 34 U.S.C. § 20911(3)(B). See United

States v. Morales, 801 F.3d 1, 3 (1st Cir. 2015) (“Tier

II of the statute captures, inter alia, sexual offenses

against victims aged 13 through 16 if the perpetrator

is four or more years older than the victim.”)

(emphasis added); United States v. White, 782 F.3d

1118, 1141 (10th Cir. 2015) (“[e]xamination of the

language used to define a tier II sex offender also

suggests that Congress intended courts to use a

categorical approach to determine the sex offender

tier, with the exception that the court should

consider the specific circumstances to determine

the victim's age.”) (emphasis added).

16

C. The Fifth Circuit’s Disjunctive Reading of

34 U.S.C. § 20911(3) Leads to an Absurd

Result

The Fifth Circuit’s reading of 34 U.S.C. §

20911(3) to apply a tier II classification when (3)(A) or

(B) or (C) exists leads to an absurd result: a tier I

offender would fall into tier II if convicted of any

offense “punishable by imprisonment for more than 1

year” which “(C) occurs after the offender becomes a

Tier I sex offender.”

The Fifth Circuit assumed – without any such

description in the statute – that when Congress wrote

an “offense punishable by imprisonment for more

than 1 year,” Congress must have meant that the

instant offense was a sex offense that would result in

registration. See App. 13. However, Congress did not

write “sex offense” or provide a similar description of

the instant offense.

Courts should “not presume to ascribe this

[interpretation]

to

a

simple

mistake

in

draftsmanship.” Russello v. United States, 464 U.S.

16, 23 (1983). “In casual conversation, perhaps, such

absent-minded duplication and omission are possible,

but Congress is not presumed to draft its laws that

way.” Arcadia v. Ohio Power Co., 498 U.S. 73, 79

(1990).

“This Court has no roving license, in even

ordinary cases of statutory interpretation, to

disregard clear language simply on the view that . . .

Congress ‘must have intended’ something broader.”

Michigan v. Bay Mills Indian Cmty., 134 S. Ct. 2024,

2034 (2014).

17

D. The Fifth Circuit’s Reading of 34 U.S.C. §

20911(3) Also Violates the Surplusage

Canon

The surplusage canon teaches that “[i]f

possible, every word and every provision is to be given

effect.... None should be ignored. None should

needlessly be given an interpretation that causes it to

duplicate another provision or to have no

consequences.” Scalia & Garner, supra, at 174. See,

e.g., BFP v. Resolution Tr. Corp., 511 U.S. 531, 545

(1994) (holding a statutory phrase is not superfluous

where it will continue to have independent meaning).

However, if necessary, “a court may well prefer

ordinary meaning to an unusual meaning that will

avoid surplusage.” Id. See also Lamie v. United States

Trustee, 540 U.S. 526, 536 (2004) (“Surplusage does

not always produce ambiguity and our preference for

avoiding surplusage constructions is not absolute....

We should prefer the plain meaning since that

approach respects the words of Congress.”).

Here, the Fifth Circuit’s opinion renders the

word “and” at the end of 34 U.S.C. § 20911(3) as mere

surplusage. In relevant part, 34 U.S.C. § 20911(3)

reads

(3) Tier II sex offender

The term “tier II sex offender” means a

sex offender other than a tier III sex

offender whose offense is punishable by

imprisonment for more than 1 year

and—

(emphasis added).

18

The “and” at the end of 34 U.S.C. § 20911(3)’s

first paragraph and the fact that there is no “or” at the

end of 34 U.S.C. § 20911(3)(A)(iv) make clear

Congress stated a tier II offender would be one that

satisfied (3)(A) and (B) or (C); not one who satisfied

either (3)(A) or (3)(B) or (3)(C). Congress’ words should

be respected and given a fair reading. Courts are not

free to pave over bumpy statutory texts in the name

of more expeditiously advancing a policy goal. United

States v. Sisson, 399 U.S. 267, 298 (1970).

CONCLUSION

Based on the foregoing, the Court should grant

the petition for a writ of certiorari.

Dated: October 3, 2023

Respectfully Submitted,

SHAUN KHOJAYAN

LAW OFFICES OF SHAUN

KHOJAYAN & ASSOCIATES, P.L.C.

515 S. Flower St., 19th Floor

Los Angeles, CA 90071

Telephone: (310) 274-6111

shaun@khojayan.com

Counsel for Petitioner Nima

Nazerzadeh