United States v. Varner

• Citation: 948 F.3d 250
• Decision Date: 15 January 2020
• Docket Number: No. 19-40016,19-40016
• Parties: UNITED STATES of America, Plaintiff - Appellee v. Norman VARNER, Defendant - Appellant
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

948 F.3d 250

UNITED STATES of America, Plaintiff - Appellee

v.Norman VARNER, Defendant - Appellant

No. 19-40016

United States Court of Appeals, Fifth Circuit.

FILED January 15, 2020

Bradley Elliot Visosky, Amanda Louise Griffith, Marisa J. Miller, Assistant U.S. Attorneys, U.S. Attorney's Office, Eastern District of Texas, Plano, TX, for Plaintiff - Appellee.

Norman Varner, Pro Se.

Before SMITH, DENNIS, and DUNCAN, Circuit Judges.

STUART KYLE DUNCAN, Circuit Judge:

Norman Varner, federal prisoner # 18479-078, appeals the denial of his motion to change the name on his judgment of confinement to "Kathrine Nicole Jett." The district court denied the motion as meritless. We conclude that the district court lacked jurisdiction to entertain the motion and so vacate the court’s judgment. In conjunction with his appeal, Varner also moves that he be addressed with female pronouns. We will deny that motion.

I.

In 2012, Varner pled guilty to one count of attempted receipt of child pornography and was sentenced to 180 months in prison, to be followed by 15 years supervised release. Varner’s federal sentence was influenced by his previous convictions at the state level for possession of child pornography and failure to register as a sex offender. In 2018, Varner wrote a letter to the district court requesting that the name on his judgment of committal ("Norman Keith Varner") be changed to reflect his "new legal name of Kathrine Nicole Jett." Varner’s letter explained that he "ca[me] out as a transgender woman" in 2015, began "hormone replacement therapy" shortly after, and planned to have "gender reassignment surgery

in the near future" in order to "finally become fully female." Attached to Varner’s letter was a certified copy of a 2018 order from a Kentucky state court changing Varner’s name.

The government opposed Varner’s request, arguing principally that Varner alleged no defect in the original judgment and that a "new preferred name" was not a basis for amending a judgment. See Fed. R. Crim. P. 36 (upon notice, court may "correct a clerical error in a judgment, order, or other part of the record"). The government also pointed out that, under Bureau of Prisons ("BOP") regulations, Varner would be able to use his preferred name as a secondary name or alias. See BOP Policy No. 5800.15, § 402(d). Finally, the government argued that Varner’s name change was, in any event, improperly obtained under Kentucky law: Varner swore in his petition that he was then a resident of "Covington, Kentucky," when, in fact, he was at the time incarcerated at a federal facility in Waymart, Pennsylvania.

The district court construed Varner’s letter as a motion to correct his judgment of committal and denied it on the merits. The court reasoned that a "new, preferred name is not a legally viable basis to amend the previously entered Judgment," and, moreover, that inmates have no constitutional right to have prison records reflect a new name. Order at 2 (citing United States v. Baker , 415 F.3d 1273, 1274 (11th Cir. 2005) ; United States v. White , 490 F. App'x 979, 982 (10th Cir. 2012) ; United States v. Jordan , 162 F.3d 93 (5th Cir. 1998) ). Additionally, the court concluded that Varner "does not appear to have legally changed his name" under Kentucky law because his prison records reflected that he was not a resident of Kentucky when he petitioned for a name change. Order at 2–3 (citing Ky. Rev. Stat. § 401.010 ). Finally, the court noted that the relief Varner sought is "achievable without amending the Judgment." Id. at 3. As the court explained, BOP regulations allow Varner to use "Kathrine Nicole Jett" as a secondary name and also authorize BOP staff "to use either gender-neutral or an inmate’s requested gender-specific pronoun or salutation when interacting with transgender inmates." Id. (citing BOP Policy No. 5800.15, § 402(d); BOP Policy No. 5200.04, § 11).

Varner appealed the district court’s denial of his motion to amend the judgment, which we review de novo . See United States v. Douglas , 696 F. App'x 666, 668 (5th Cir. 2017) (per curiam) (citing United States v. Ramirez-Gonzalez , 840 F.3d 240, 246 (5th Cir. 2016) ); see also United States v. Davis , 841 F.3d 1253, 1261 (11th Cir. 2016). Along with his appeal, Varner has filed various motions in our court, including a "motion to use female pronouns when addressing Appellant" and motions to "submit [his] photograph into evidence" or to "appear ... either by phone, video-conference, or in person."

II.

A.

While the district court’s reasons are well-taken, we conclude that Varner’s request to change the name on his judgment of commitment was "an unauthorized motion which the district court was without jurisdiction to entertain." United States v. Early , 27 F.3d 140, 142 (5th Cir. 1994). Our jurisdiction is predicated upon the valid jurisdiction of the district court, and so we must examine the basis for the district court’s jurisdiction. United States v. Key , 205 F.3d 773, 774 (5th Cir. 2000) ; Mosley v. Cozby , 813 F.2d 659 (5th Cir. 1987). "Absent jurisdiction conferred by statute, district courts lack power to consider claims." Veldhoen v. United States Coast Guard , 35 F.3d 222, 225 (5th Cir. 1994). "If the district court lacked jurisdiction, ‘[o]ur jurisdiction extends not to the merits but merely for the purpose of correcting the error of the lower court in entertaining the suit.’ " Key , 205 F.3d at 774 (quoting New York Life Ins. Co. v. Deshotel , 142 F.3d 873, 882 (5th Cir. 1998) ). We conclude that Varner’s motion was unauthorized by any statute and that the district court therefore lacked jurisdiction to entertain it.

Varner’s letter request does not fall into any of the recognized categories of postconviction motions. Although a district court has authority to correct a sentence under Federal Rule of Criminal Procedure 35 and to correct clerical mistakes in judgments and orders under Federal Rule of Criminal Procedure 36, Varner’s request does not fall under either rule. The request did not implicate Rule 35 because it was neither made "[w]ithin 14 days after sentencing," nor was it made by the government. See Fed. R. Crim. P. 35(a) (allowing court to correct "arithmetical, technical, or other clear error" in sentence "[w]ithin 14 days after sentencing"); id. 35(b)(1), (2) (allowing sentence reduction on certain grounds "[u]pon the government’s motion"). Nor did the request implicate Rule 36 because it did not seek correction of a "clerical error in [the] judgment." Fed. R. Crim. P. 36. A clerical error occurs "when the court intended one thing but by merely clerical mistake or oversight did another." United States v. Buendia-Rangel , 553 F.3d 378, 379 (5th Cir. 2008) ; see also Ramirez-Gonzalez , 840 F.3d at 247 ( Rule 36 is a "limited tool[ ] meant only to correct mindless and mechanistic mistakes") (internal quotation marks and citations omitted). A name change obtained six years after entry of judgment is not a clerical error within the meaning of Rule 36.

Nor was Varner’s request authorized under 18 U.S.C. § 3582(c)(2) because it was not based upon an amendment to the Sentencing Guidelines. See § 3582(c)(2) (permitting court to modify term of imprisonment "based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. [§] 994(o)"). Additionally, the district court could not construe the request as a motion arising under 18 U.S.C. § 3742, which applies only to direct appeals. See Early , 27 F.3d at 142 (explaining that relief under § 3742 is "available ... only upon direct appeal of a sentence or conviction"). Finally, the request did not arise under 28 U.S.C. § 2255 because Varner did not challenge the validity of his conviction or sentence. See United States v. Segler , 37 F.3d 1131, 1137 (5th Cir. 1994) (explaining "Congress ... meant to limit the types of claims cognizable under § 2255 to claims relating to unlawful custody"). In sum, Varner’s request to change the name on his judgment was an unauthorized motion that the district court lacked jurisdiction to entertain.

B.

We next consider Varner’s motion for the "use [of] female pronouns when addressing [Varner]." We understand Varner’s motion as seeking, at a minimum, to require the district court and the government to refer to Varner with female instead of male pronouns.¹ Varner cites no legal authority supporting this request. Instead, Varner’s motion simply states that "I am a woman" and argues that failure to refer to him with female pronouns "leads me to feel that I am being discriminated against based on my gender identity." Varner’s reply brief elaborates that "[r]eferring to me simply as a male and with male pronouns based solely on my biological body makes me feel very uneasy and disrespected." We deny the motion for the following reasons.

First, no authority supports the proposition that we may require litigants, judges, court personnel, or anyone else to refer to gender-dysphoric² litigants with pronouns matching their subjective gender identity. Federal courts sometimes choose to refer to gender-dysphoric parties by their preferred pronouns.³ On this issue, our court has gone both ways. Compare Rush v. Parham , 625 F.2d 1150, 1153 n.2 (5th Cir. 1980) (adopting "for this opinion" the "convention" in "medical literature" of using "feminine pronouns ... to describe a transsexual with a male biological gender"), with Gibson , 920 F.3d at 217 n.2 (using "male pronouns" to refer to gender-dysphoric prisoner who was "born male" but has "lived as a female since the age of 15"); see also Praylor v. Tex. Dep’t of Crim. Justice , 430 F.3d 1208, 1208–09 (5th Cir. 2005) (per curiam) (using male pronouns to refer to "transsexual[ ]" inmate who sought injunction requiring prison "to provide him with hormone therapy and brassieres"). But the courts that have followed this "convention," Schwenk , 204 F.3d at 1192, have done so purely as a courtesy to parties. See,...