

October 24, 1995  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT

                                                                                                

No. 95-1696

                        EDMUND M. HURLEY,

                      Plaintiff, Appellant,

                                v.

                        BUREAU OF PRISONS,

                       Defendant, Appellee.

                                                                                                

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF MASSACHUSETTS

         [Hon. Reginald C. Lindsay, U.S. District Judge]                                                                 

                                                                                                

                     Torruella, Chief Judge,                                                     

                  Cyr and Lynch, Circuit Judges.                                                         

                                                                                                

   James P. Duggan for appellant.                            
   John A. Capin, Assistant United States Attorney, with whom Donald                                                                              
K. Stern, United States Attorney, was on brief for appellee.                

                                                                                                

                                                                                                

          Per Curiam.   Edmund H. Hurley appeals  a summary judg-                    Per Curiam                              

ment order disallowing his claim  for damages, attorney fees, and

costs  against the  Bureau  of Prisons  (the "Bureau")  under the

Privacy  Act of  1974,  5 U.S.C.     552a(e)(5), (g)(1)(C).    We

affirm, substantially for the reasons relied upon by the district

court.  See  Hurley v.  Bureau of Prisons,  No. 94-10966-RCL  (D.                                                   

Mass. May 18, 1995). 

          In July  1990, Hurley  was convicted of  defrauding the

United States, see  18 U.S.C.    371, and sentenced to  an eight-                            

month term of  confinement.  Although  the sentence exceeded  the

six-month maximum, see  18 U.S.C.   3651  (repealed 1987), Hurley                                

did  not appeal the sentence.  This court affirmed his conviction

in United States v.  Hurley, 957 F.2d 1 (1st Cir.), cert. denied,                                                                          

113 S. Ct. 60 (1992).  

          Shortly after Hurley began serving his term of confine-

ment  in May 1992, the Bureau noted that the eight-month sentence

exceeded the  statutory maximum, whereupon it  advised Hurley and

telephoned the Assistant United  States Attorney ("AUSA") who had

tried  the case.   Although  both the  AUSA and  Hurley's counsel

promptly  moved to  correct  the sentence,  the sentencing  court

denied both motions.  In addition, pending appeal of the district

court order  denying Hurley's  requests to correct  the sentence,

the  Bureau declined Hurley's request that he be allowed to serve

the last two months  of his prison term in  a halfway house.   As

grounds  therefor,  the Bureau  cited  the  PSR's description  of

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Hurley's  money  laundering activities  (i.e.,  in  excess of  $5

million), to which no objection had been asserted by Hurley.  

          On October 14, 1992, this court vacated the eight-month

sentence  and directed  Hurley's immediate  release.   See United                                                                           

States v.  Hurley, No. 92-2125 (1st Cir. Oct. 14, 1995).  By that                           

time, however, he had already served seventeen days more than the

six-month maximum term.

          Hurley sued  the Bureau  for damages under  the Privacy

Act,  which requires  federal agencies  "to maintain  all records

which  are used by the  agency in making  any determination about

any individual  with  such accuracy,  relevance, timeliness,  and

completeness as is reasonably necessary to assure fairness to the

individual in the determination."  5 U.S.C.   552a(e)(5).  Hurley

alleged that the Bureau wrongfully  relied on the district  court

judgment imposing the eight-month  sentence, knowing the sentence

to be "inaccurate," and that the  Bureau had failed to follow its

own internal  procedures for  reporting illegal sentences  to the

AUSA.  These  contentions were properly rejected  by the district

court.

          The  district court  judgment accurately  reflected the

sentence imposed by the  sentencing court, and the Bureau  had no

obligation     indeed no right    to disregard the sentence until

the  sentencing  court  or  the court  of  appeals  corrected it.

Similarly,  the  claimed  deviation  from  Bureau  procedures    

namely, placing a telephone call to the AUSA, rather than writing

a  letter    was inconsequential.  At most, any procedural devia-

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tion expedited  the correction of Hurley's sentence,  and, in all                        

events, it caused Hurley no injury.  Indeed, Hurley concedes that                           

the  AUSA promptly moved to correct  the sentence, once notified.

No more was exigible from the Bureau.

          Finally, Hurley  alleged that the  Bureau violated  the

Privacy Act by relying on the "inaccurate" PSR description of his

money laundering activities in denying his request for a "halfway

house"  placement.   Hurley neither  objected  to the  PSR before

sentencing,  nor on the appeal  from his conviction.   See United                                                                           

States v.  Hurley, 957  F.2d  1, 4  (1st Cir.  1992).   Any  such                           

inaccuracy in the PSR  should have been brought to  the attention

of the district court  at sentencing; or,  at the very least,  on

appeal from his conviction  and sentence.  See  Fed. R. Crim.  P.                                                        

32(c)(3)(D) (1987)  (requiring sentencing  court to make  written

factual  findings concerning  any objections  to PSR,  and append

them to copy of  PSR made available to Bureau),  repromulgated at                                                                           

Fed. R. Crim. 32(c)(1) (1995). 

          Affirmed.                     Affirmed.                            

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