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

APPENDIX

Table of Contents

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

App. 1

United States Court of Appeals

For the Fifth Circuit

United States Court of Appeals

Fifth Circuit

FILED

July 11, 2023

Lyle W. Cayce

Clerk

______________

No. 22-20238

_______________

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

versus

NIMA NAZERZADEH,

Defendant-Appellee.

______________________________

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:06-CR-30-1

________________________________

Before KING, SMITH, and ELROD, Circuit Judges.

JENNIFER WALKER ELROD, Circuit Judge:

App. 2

The government appeals the district court’s

order granting Nima Nazerzadeh’s request to

terminate his obligation to register as a sex offender.

Because the unambiguous language of the Sex

Offender Registration and Notification Act deems

Nazerzadeh a tier II sex offender, and because that

status demands that his registration continues, we

REVERSE.

I

Nazerzadeh pleaded guilty to two counts of

distribution of child pornography and one count of

possession of child pornography involving the sexual

exploitation of minors. He was sentenced to 60 months

in prison on each count, to run concurrently. The

district court also imposed a life term of supervised

release.

After serving his sentence, Nazerzadeh was

released from prison in August 2010. And he

successfully completed his sex offender treatment.

Since his release, he has maintained a clean record

and complied with his registration requirement.

In March 2022, Nazerzadeh moved to

terminate his federal obligation to register as a sex

offender. As legal authority, he cited 34 U.S.C. §

20915(b), which allows “a tier I sex offender” to obtain

reduction of the registration period if the offender

maintained a “clean record” for 10 years. The

government opposed the motion, arguing that

Nazerzadeh’s conviction for distribution of child

pornography makes him a tier II sex offender, and tier

II sex offenders are required to register for 25 years.

Accordingly, the government asserted that: (1)

SORNA did not provide a private cause of action to

seek a reduction in the term of registration; and (2) in

App. 3

the alternative, SORNA did not provide for a

reduction for tier II sex offenders.

Without explanation, the district court granted

Nazerzadeh’s motion and relieved him of his federal

obligation to register as a sex offender. The

government timely appealed. On appeal, the

government re-urged only its second argument, that §

20915 does not provide for a reduction for tier II sex

offenders. Accordingly, we address only that

argument.

II

In general, we review findings of fact for clear

error and conclusions of law de novo. United States v.

Huerta, 994 F.3d 711, 714 (5th Cir. 2021). We review

SORNA’s registration requirement de novo. United

States v. Schofield, 802 F.3d 722, 725 (5th Cir. 2015).

III

As to tier I sex offenders, SORNA provides for

a 5-year reduction of the registration period if the

registrant maintained “a clean record” for 10 years. 34

U.S.C. § 20915(b). As to tier II sex offenders, however,

SORNA does not allow for any reduction. §

20915(b)(3). The government does not dispute that

Nazerzadeh has maintained a clean record for the

prescribed period. It contends, however, that

Nazerzadeh is a tier II offender, and so he is not

entitled to a reduction. But if Nazerzadeh is correct

that he is properly classified as a tier I offender, then

a 5-year reduction (which SORNA authorizes for tier

I offenders) would terminate his obligation because he

has fulfilled more than 11 years of the 15-year

mandatory registration.

Given this background, the determinative

question is whether Nazerzadeh is a tier I or tier II

App. 4

sex offender. As to tier I and tier II classifications,

SORNA provides as follows:

(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))1 of

Title 18;

(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

App. 5

child pornography; or

(C) occurs after the offender becomes a

tier I sex offender.

34 U.S.C. § 20911.

In

interpreting

§

20911(3)

(tier

II

classification), the government argues for a

disjunctive reading of the statute, whereas

Nazerzadeh argues for a conjunctive reading. Under

the government’s reading, conditions (3)(A), (3)(B),

and (3)(C) are each independently sufficient for tier II

classification. In contrast, under the Nazerzadeh’s

reading, none of the conditions are independently

sufficient, and (3)(A) is necessary. Or, as he put it, “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)” (emphasis in

original).

Here, the parties’ briefs indicate that condition

(3)(B)(iii)—and only that condition—is satisfied. And

so, the choice between a disjunctive or conjunctive

reading is outcome determinative. If we adopt the

disjunctive reading, then Nazerzadeh is a tier II

offender. But under the conjunctive reading, he would

not qualify as a tier II offender because (3)(A) is not

satisfied, and thus he would be considered as tier I by

default.

A

We hold that the disjunctive reading is the

correct interpretation of the statute. The “Supreme

Court has noted that ‘or’ is ‘almost always

disjunctive.’” Cascabel Cattle Co., L.L.C. v. U.S., 955

F.3d 445, 451 (5th Cir. 2020) (quoting Encino

Motorcars, LLC v. Navarro, 138 S. Ct. 1134, 1141

(2018)). The word “indicates alternatives and requires

App. 6

that those alternatives be treated separately.”

Dacostagomez-Aguilar v. U.S. Atty. Gen., 40 F.4th

1312, 1316 (11th Cir. 2022) (citation and quotation

marks omitted). Thus, as a matter of ordinary

English, when a provision requires “A, B, or C” it

expresses a “disjunctive list, [where] at least one of the

three is required, but any one (or more) of the three

satisfies the requirement.” Antonin Scalia & Bryan A.

Garner, Reading Law: The Interpretation of Legal

Texts 116 (2012); see 73 Am. Jur. 2d Statutes § 139

(observing that when a “conjunction is placed

immediately before the last of the series, the same

connective is understood between the previous

members”); see also United States v. Palomares, 52

F.4th 640, 643 (5th Cir. 2022) (“An em dash signifies

that the clause that immediately precedes the dash

applies to all of the items that follow.” (alterations,

quotation marks, and citation omitted).).

And our precedent supports this presumption.

In Navarro, for example, we observed that “an

offender qualifies as tier II if his sex offense was

[encompassed under § 20911(3)(A)(iv)].” United States

v. Navarro, 54 F.4th 268, 278 (5th Cir. 2022) (citing 34

U.S.C. § 20911(3)(A)(iv)); see also United States v.

Walker, 931 F.3d 576, 578 (7th Cir. 2019) (Barrett, J.)

(similarly holding that “a person is a tier II sex

offender if his offense [satisfies § 20911(3)(A)(iv)]”). In

holding so, we understood subsection (3)(A) as

independently sufficient for tier II classification. That

understanding is consistent with the disjunctive

reading.

Our decision in Coleman likewise supports a

disjunctive reading. United States v. Coleman, 681 F.

App’x 413 (5th Cir. 2017). Coleman addressed

App. 7

whether a sex offender qualifies as tier III under 34

U.S.C. § 20911(4)(A) (previously 42 U.S.C. §

16911(4)(A)). Like § 20911(3) (defining tier II), the

text of § 20911(4) (defining tier III) has an “(A), (B), or

(C)” structure. The subsection reads as follows:

(4) Tier III sex offender

The term “tier III sex offender” means a 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, or an

attempt or conspiracy to commit such

an offense:

(i) aggravated sexual abuse or

sexual abuse (as described in

sections 2241 and 2242 of Title 18);

or

(ii) abusive sexual contact (as

described in section 2244 of Title 18)

against a minor who has not

attained the age of 13 years;

(B) involves kidnapping of a minor

(unless committed by a parent or

guardian); or

(C) occurs after the offender becomes a

tier II sex offender.

34 U.S.C. § 20911(4).

The Coleman panel affirmed the district court’s

tier III categorization because the defendant satisfied

(4)(A). In its reasoning, the panel never discussed

either (4)(B) or (4)(C), indicating that it adopted a

disjunctive interpretation by reading (4)(A) as

independently sufficient. Given that § 20911(4) has

the exact same structure as § 20911(3), Coleman

App. 8

supports a disjunctive reading of § 20911(3). 681 F.

App’x 413; see also Walker, 931 F.3d at 576 n.1

(Barrett, J.) (recognizing that there are multiple

“ways to qualify as a Tier II or Tier III offender”).

B

Nazerzadeh contends that we should adopt a

conjunctive reading because the end of subsection

(3)(A) does not include the conjunction “or.” In other

words, he contends that, if Congress had wanted to

provide three different alternatives for tier II

classification, the statute would have stated “(3)(A), or

(3)(B), or (3)(C).” Because the first “or” is “missing,”

Nazerzadeh concludes 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)” (emphasis in original).

We are unpersuaded by this argument. To be

sure, some legal drafters, “through abundant caution,

put a conjunction between all the enumerated items.”

Reading Law, at 118. For example, a provision may

state:

The seller shall provide:

(a) a survey of the property; and

(b) the surveyor’s sworn certificate that

the survey is authentic and, to the best of

the surveyor’s knowledge, accurate; and

(c) a policy of title insurance showing the

boundaries of the property; and

(d) a plat showing the metes and bounds

of the property.

Id. But the use of multiple conjunctions there (a

technique called “polysyndeton”) “does not convey a

meaning different from that of the identical phrasing

minus the ands at the end of (a) and (b).” Id.; see also

App. 9

Sierra Club v. United States Env’t Prot. Agency, 964

F.3d 882, 892 n.8 (10th Cir. 2020). Moreover, this

technique is disfavored because “over time, it [may]

cast doubt on the meaning conveyed by the use of

syndeton [i.e., the use of a conjunction between the

last elements only].” Reading Law, at 118. And so,

here, although the statute could have used multiple

“ors” by stating “(3)(A), or (3)(B), or (3)(C),” doing so

would not convey a meaning different from the

current formulation. As a matter of ordinary English,

when a provision requires “A, B, or C” it expresses a

“disjunctive list, [where] at least one of the three is

required, but any one (or more) of the three satisfies

the requirement.” Id. at 116.

Next, Nazerzadeh contends that the Third

Circuit’s decision in Hodge supports his position.

United States v. Hodge, 321 F.3d 429 (3d Cir. 2003).

In Hodge, the Third Circuit addressed whether a

“wax-and-flour” mixture is a “controlled substance

analogue” within the meaning of 21 U.S.C. §

802(32)(A). Id. at 431. The relevant provisions state:

[With certain exceptions not relevant here,]

the term “controlled substance analogue”

means a substance—

(i) the chemical structure of which is

substantially similar to the chemical

structure of a controlled substance in

schedule I or II;

(ii) which has a stimulant, depressant,

or hallucinogenic effect on the central

nervous system that is substantially

similar to or greater than the

stimulant,

depressant,

or

hallucinogenic effect on the central

App. 10

nervous system of a controlled

substance in schedule I or II; or

(iii) with respect to a particular person,

which such person represents or

intends

to

have

a

stimulant,

depressant, or hallucinogenic effect on

the central nervous system that is

substantially similar to or greater than

the

stimulant,

depressant,

or

hallucinogenic effect on the central

nervous system of a controlled

substance in schedule I or II.

21 U.S.C. § 802(32)(A).

The government there proposed a disjunctive

interpretation, namely, that a substance is a

controlled substance analogue if it satisfies any one of

clauses (i), (ii), or (iii). In contrast, the defendants

argued that “a controlled substance analogue must

satisfy both clause (i) and either clause (ii) or (iii).”

Hodge, 321 F.3d at 433. Under the government’s

proposed reading, the mixture of candle wax and flour

that the defendants sold would be a “controlled

substance analogue” under subpart (iii) because the

defendants “represent[ed]” their product as crack

cocaine. Id. In contrast, under the defendants’

conjunctive interpretation, the mixture would not be

a controlled substance analogue because it does not

satisfy clause (i).

Relying on the absurdity canon and legislative

history, the Hodge panel agreed with the defendants’

conjunctive reading. The court observed that under a

disjunctive reading, powdered sugar or a mixture of

candle wax and flour “would be an analogue if a

defendant represented that it was cocaine.” Id. at 434.

App. 11

And the court reasoned that the “treatment of candle

wax and flour, no matter how it is marketed, as a

schedule I controlled substance is an ‘absurd’ result of

the kind our canons of construction instruct us to

avoid.” Id. at 439. Pointing to legislative history, the

panel noted that “Congress did not intend to include

innocuous substances such as wax and flour within its

definition of controlled substance analogues.” Id. at

438–39. Thus, the panel adopted a conjunctive

interpretation and reversed the defendants’

convictions that were based on a disjunctive reading

of the statute. Id. at 439.

Even though Hodge addressed a completely

different statute, Nazerzadeh contends that the

structure of the statute in Hodge is similar to the

structure of the statute at issue here. And so, he

asserts that we should follow the panel in Hodge and

adopt a conjunctive reading. We refuse to do so,

however, for three reasons.

First, we have rejected Hodge’s conjunctive

reading of 21 U.S.C. § 802(32)(A) in United States v.

Granberry, 916 F.2d 1008, 1010 (5th Cir. 1990). See

United States v. Roberts, 363 F.3d 118, 121 (2d Cir.

2004) (observing that the Fifth Circuit in Granberry

adopted a disjunctive test as to 21 U.S.C. §

802(32)(A)).

Second, we are not persuaded by Hodge’s

reasoning because it relies on legislative history. “We

are reluctant to rely on legislative history for the

simple reason that [it is] not law.” In re Ultra

Petroleum Corp., 51 F.4th 138, 148 n.10 (5th Cir.

2022) (quoting In re DeBerry, 945 F.3d 943, 949 (5th

Cir. 2019)). And when we do consider legislative

history, it is only because the text at issue is

App. 12

ambiguous. Goswami v. Am. Collections Enter., Inc.,

377 F.3d 488, 492 (5th Cir. 2004). Because there is no

such ambiguity here, “we are not permitted to look to

the legislative history.” Id. at 492.

But even assuming arguendo that we can look

to the purpose of the statute, it does not support

Nazerzadeh’s conjunctive reading. We have observed

that “Congress enacted SORNA to ‘protect the public

from sex offenders and offenders against children’ and

to ‘establish[] a comprehensive national system for the

registration of those offenders.’” United States v.

Gonzalez-Medina, 757 F.3d 425, 432 (5th Cir. 2014)

(alteration in original) (quoting 42 U.S.C. § 16901).

And “SORNA’s language confirms ‘that Congress cast

a wide net to ensnare as many offenses against

children as possible.’” Id. (quoting United States v.

Dodge, 597 F.3d 1347, 1355 (11th Cir.2010) (en banc)).

Thus, to the extent that purpose serves as context, it

supports a disjunctive, more inclusive reading, of the

statute. See United States v. Sharp, 62 F.4th 951, 953

(5th Cir. 2023) (observing that “words are given

meaning by their context, and context includes the

purpose of the text,” but purpose “is to be described as

concretely as possible”) (quoting Reading Law, at 56–

57).

And finally, unlike in Hodge, the absurdity

canon is inapplicable here. Nazerzadeh contends that

a disjunctive reading of the tier II classification would

lead to an absurd result because it would mean that

(3)(C) is individually sufficient for tier II

categorization. If (3)(C) is individually sufficient, he

contends that a tier I offender would fall into tier II if

convicted of a any offense “punishable by

imprisonment for more than 1 year,” if the offense

App. 13

“occurs after the offender becomes a tier I sex

offender.” 34 U.S.C. § 20911(3)(C). But this argument

relies on a misinterpretation. The relevant provision

reads:

“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 . . .

(C) occurs after the offender becomes a tier

I sex offender.”

Given that SORNA is concerned with sex offenses,

context would indicate that the term “offense”

specifically refers to a sex offense, not just any offense.

And so, under (3)(C), a tier I offender would be

elevated into a tier II category when he commits a sex

offense (not just any offense) that is “punishable by

imprisonment for more than 1 year,” if the offense

“occurs after the offender becomes a tier I sex

offender.” § 20911(3)(C). We see nothing absurd about

that outcome as it merely reflects Congress’s decision

to lengthen the registration period for repeat sex

offenders.

*

*

*

As a matter of ordinary English, when a

provision requires “A, B, or C” it expresses a

“disjunctive list, [where] at least one of the three is

required, but any one (or more) of the three satisfies

the requirement.” Reading Law, at 116; 73 Am. Jur.

2d Statutes § 139. We may consider departing from

that general presumption only when “context dictates

otherwise.” Stansell v. Revolutionary Armed Forces of

Colombia, 45 F.4th 1340, 1353 (11th Cir. 2022).

Context does not dictate otherwise here. Thus, we

agree with the government that 34 U.S.C. §

App. 14

20911(3)(A)–(C) should be read disjunctively, whereby

(3)(A), (3)(B), and (3)(C) are each independently

sufficient for tier II classification.1

Because he was convicted for distribution of

child pornography, Nazerzadeh’s crime falls under §

20911(3)(B)(iii), and so he is a tier II sex offender.

Consequently, he “shall” register for 25 years from the

date of his release from prison. 34 U.S.C. § 20915(a)(2)

(stating that “[a] sex offender shall keep the

registration current for . . . 25 years, if the offender is

a tier II sex offender”); id. (stating that the

registration period “exclud[es] any time the sex

offender is in custody or civilly committed”).

Furthermore, he is not entitled to any reduction of the

required registration period under SORNA. 34 U.S.C.

§ 20915(b) (providing reduction for tier I and tier III

sex offenders, but not tier II). Accordingly, the district

court’s grant of Nazerzadeh’s motion to terminate his

federal obligation to register as a sex offender is

REVERSED.

Agency deference does not apply here because the statute is

unambiguous. See Huntington Ingalls, Inc. v. Dir., Off. of

Workers’ Compen. Programs, U.S. Dept. of Lab., 70 F.4th 245,

253 (5th Cir. 2023). And even if the statute is ambiguous, we

would have applied the rule of lenity rather than defer to the

agency’s interpretation. See Cargill v. Garland, 57 F.4th 447, 468

(5th Cir. 2023) (holding that agency deference “does not apply

[when] the statutory language at issue implicates criminal

penalties”); United States v. Hoang, 636 F.3d 677, 682 (5th Cir.

2011) (“[T]o the extent SORNA may be ambiguous, the rule of

lenity requires that we interpret the statute in [the Defendant’s]

favor.”).

1

App. 15

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

United States District Court

Southern District of Texas

ENTERED

April 15, 2022

Nathan Ochsner, Clerk

The United States of America, §

§

Plaintiff,

§

versus

§ Criminal H-06-30

§

Nima Nazerzadeh,

§

§

Defendant.

§

Order Terminating Registration Obligation

Based on the evaluation of the doctor treating

him and his family’s support, Nima Nazerzadeh is

relieved of his federal obligation to register as a sex

offender. (97) (99)

Signed on April 15, 2022, at Houston, Texas.

Lynn N. Hughes

Lynn N. Hughes

United States District Judge