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,

Petitioner‐Appellant,

v.

CHARLES LOCKETT, Warden,

Respondent‐Appellee.                 

Appeal from the United States District

Court for the Southern District of Indiana,

Terre Haute Division.

No. 2:09‐cv‐338‐RLY‐WGH

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.

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

 Fed. R. App. P. 32.1

*

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.