NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 8, 2011*
Decided March 9, 2011
Before
RICHARD A. POSNER, Circuit Judge
TERENCE T. EVANS, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 10‐2592
THOMAS E. BLACKSHEAR, Appeal from the United States District
Petitioner‐Appellant, Court for the Southern District of Indiana,
Terre Haute Division.
v.
No. 2:09‐cv‐338‐RLY‐WGH
CHARLES LOCKETT, Warden,
Respondent‐Appellee. Richard L. Young,
Chief Judge.
O R D E R
Thomas Blackshear is a federal prisoner serving a 216‐month term for drug and
firearm convictions. He petitioned for a writ of habeas corpus, see
28 U.S.C. § 2241, seeking
to have his presentence report amended to reflect an error in the calculation of his
guidelines imprisonment range. The district court denied the petition on the ground that
Blackshear was not challenging the fact or duration of his custody. We affirm the judgment.
*
After examining the briefs and the record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and the record. See FED. R. APP. P.
34(a)(2)(C).
No. 10‐2592 Page 2
After we affirmed Blackshear’s convictions and sentence on direct appeal, United
States v. Blackshear, 40 F. App’x 220, 222 (7th Cir. 2002), he filed a motion for postconviction
relief under
28 U.S.C. § 2255, which was denied, United States v. Blackshear, No. 03 C 50392,
2004 WL 42366 (N.D. Ill. Jan. 6, 2004). Several years later, in 2008, Blackshear requested a
sentence reduction under
18 U.S.C. § 3582(c) based on retroactive amendments to the base
offense levels for most crimes involving crack cocaine. The district court denied the motion
but, in passing, observed that the probation officer had misapplied the grouping rules, see
U.S.S.G. §§ 3D1.1‐.5, when originally calculating Blackshear’s imprisonment range under
the sentencing guidelines. The mistake had gone unnoticed at sentencing, but, as the district
court noted, it did not affect Blackshear’s motion under § 3582(c).
The district court’s observation prompted this litigation. In his § 2241 petition,
Blackshear requested an order directing the probation office in the Northern District of
Illinois to revise his presentence report to correct the grouping error. The Bureau of Prisons
has a copy of the report in its file on Blackshear, and he wanted assurance that the
“information is not being viewed in the wrong context, as to cause a negative outcome
when dealing with the inmate by the BOP.” The district court concluded that Blackshear
was not entitled to relief because the injury he identified “does not affect the fact or duration
of his confinement.”
To the extent that this is a genuine proceeding under § 2241, we agree with the
district court that the petition is without merit, for Blackshear cannot link the inaccuracies in
his presentence report to an injury affecting the fact or length of his sentence. See Preiser v.
Rodriguez,
411 U.S. 475, 498‐99 (1973); Mitchell v. U.S. Parole Com’n,
538 F.3d 948, 952 (8th
Cir. 2008); Montgomery v. Anderson,
262 F.3d 641, 643‐44 (7th Cir. 2001). But it is clear from
his submissions to the district court and his brief to this court that Blackshear actually had
in mind a claim against the BOP under the Privacy Act, 5 U.S.C. § 552a, for failure to keep
accurate inmate files. In Sellers v. Bureau of Prisons,
959 F.2d 307, 310 (D.C. Cir. 1992), a
decision Blackshear has cited repeatedly, the D.C. Circuit reversed the dismissal of a claim
under the Privacy Act and remanded “to determine whether the Bureau of Prisons and the
Parole Commission wilfully or intentionally failed to maintain” accurate records for the
plaintiff, a prison inmate. In that case, too, the inmate had alleged that a presentence report
on file with the BOP contained inaccuracies. See
id. at 308. Blackshear says he deserves
similar relief, but as the BOP explained in response to his grievance, after Sellers the agency
availed itself of a Privacy Act exemption that frees it from an obligation to keep accurate
inmate files. 5 U.S.C. § 552a(j);
28 C.F.R. § 16.97(j); Skinner v. United States Dept. of Justice and
Bureau of Prisons,
584 F.3d 1093, 1097 (D.C. Cir. 2010); Martinez v. Bureau of Prisons,
444 F.3d
620, 624 (D.C. Cir. 2006). Accordingly, the damages remedy available to the plaintiff in
Sellers is no longer applicable. Blackshear, however, seeks an amendment to his presentence
report, a remedy different from that sought in Sellers, and one that was out of reach even
No. 10‐2592 Page 3
under the law as it stood when Sellers was decided. See
28 C.F.R. § 16.85; Skinner, 584 F.3d at
1097. Furthermore, even if Blackshear had a claim under the accuracy provisions of the
Privacy Act, he would still be out of luck because those provisions are meant for correcting
factual and historical errors, not legal conclusions. See Mueller v. Winter,
485 F.3d 1191, 1197
(D.C. Cir. 2007); White v. U.S. Probation office,
148 F.3d 1124, 1125 (D.C. Cir. 1998). And the
district court’s application of the grouping rules was a legal, not factual, determination. See
United States v. Liddell,
543 F.3d 877, 880 (7th Cir. 2008); United States v. Tolbert,
306 F.3d 244,
246 (5th Cir. 2002).
AFFIRMED.
