
USCA1 Opinion

	




          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                                          2          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-                                          3          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.                    ________                                          4
