United States v. Curtis Cluff

Case: 16-20116 Document: 00513997448 Page: 1 Date Filed: 05/18/2017

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

No. 16-20116 FILED

May 18, 2017

Lyle W. Cayce

UNITED STATES OF AMERICA, Clerk

Plaintiff - Appellee,

v.

CURTIS JAMES CLUFF,

Defendant - Appellant.

Appeal from the United States District Court

for the Southern District of Texas

Before SMITH, and HAYNES, Circuit Judges, and JUNELL, District Judge. *

JUNELL, District Judge:

Curtis Cluff pleaded guilty to conspiracy to possess with intent to

distribute cocaine under 21 U.S.C. §§ 841, 846, and was sentenced to

99 months’ imprisonment and 5 years of supervised release. Following his

sentence, Cluff filed a motion for new trial, alleging the Government breached

the plea agreement. The district court denied the motion and Cluff appealed.

We AFFIRM.

I.

In October 2014, Curtis Cluff was charged in a two-count indictment

with conspiracy to possess with intent to distribute cocaine under 21 U.S.C.

* District Judge of the Western District of Texas, sitting by designation.

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§§ 841, 846, and aiding and abetting bulk cash smuggling under 31 U.S.C.

§ 5332 and 18 U.S.C. § 2. The events giving rise to those charges occurred in

2011; however, Cluff entered into an agreement with the Government in

January 2012 to work as a confidential informant. The Government states the

agreement provided that as long as he was working for the Government, he

would not be prosecuted. Cluff continued working in this capacity until March

2014 when he was hospitalized after being shot by a police officer who was the

subject of an investigation in which Cluff was assisting.

In March 2015, Cluff moved to dismiss the indictment based on the

doctrine of equitable immunity. Therein, Cluff stated he believed that as long

as he cooperated with law enforcement, he would not be prosecuted at all. 1 He

also explained the only reason he ceased working as an informant was because

all contact with his supervising agents ceased after he was shot. The

Government filed a response in opposition to Cluff’s motion, acknowledging

that they had approached Cluff to be an informant, but denying any promise

or representation had been made by a law enforcement officer or prosecutor

that he would not be charged. Cluff was informed he would ultimately be

charged once his cooperation was complete.

Upon the district court’s denial of the motion to dismiss, Cluff pleaded

guilty to count one—conspiracy to possess with intent to distribute cocaine—

and entered into a plea agreement with the Government. The agreement

provided that the Government would move to dismiss count two; recommend a

two-level downward adjustment for acceptance of responsibility “should the

defendant accept responsibility as contemplated by the Sentencing

Guidelines”; recommend an additional one-level reduction based on the

1 In the motion, he alleged that he was “offered the opportunity of freedom for him

and his family” if he worked as an informant.

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timeliness of his plea; recommend he only be held accountable for 65.32

kilograms of cocaine; not seek a money judgment forfeiture; and recommend

he receive the benefits of the safety valve provisions of 18 U.S.C. § 3553(f) and

U.S.S.G. § 5C1.2, if eligible. In addition, the Government indicated it may file

a motion for departure under U.S.S.G. § 5K1.1 as a result of Cluff’s

cooperation. At the plea hearing, Cluff acknowledged that the terms of the

plea agreement were correct, no other promises had been made to induce him

to plead guilty, and he understood the terms of the plea agreement.

The Presentence Investigation Report (PSR) assessed a base offense

level of 38 upon finding that Cluff was responsible for 615 kilograms of cocaine.

The probation officer also recommended a four-level enhancement based on

Cluff’s role as an organizer or leader, which resulted in a total offense level of

42. With an offense level of 42 and a criminal history category of I, his

guideline range for imprisonment was 360 months to life.

Cluff objected to the PSR to the extent it did not conform to the plea

agreement. He objected to the amount of cocaine as well as the leadership

enhancement and sought a reduction for acceptance of responsibility and

application of the safety valve provision. The Government filed a response,

recommending Cluff be given safety valve and that he be held accountable for

only 65.32 kilograms of cocaine, as agreed in the plea agreement. The

Government also contested the leadership enhancement. Subsequently, the

Government filed a motion for sentence reduction pursuant to § 5K1.1 and

recommended Cluff receive a three-level reduction for acceptance of

responsibility, which would result in a recommended guideline range of 46 to

57 months’ imprisonment.

II.

At the sentencing hearing on December 1, 2015, Cluff accepted

responsibility for his actions. He then explained to the court that he became

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an informant based on his understanding that he had entered into an

agreement with the DEA agents that if he worked for the Government, he

would not be charged at all. Assistant United States Attorney (AUSA) Ralph

Imperato denied ever having made such a promise, explaining that Cluff was

told he would go to prison, but the amount of time he would serve was

dependent upon his level of cooperation. The district judge asked Cluff who

had made him this alleged promise, to which he replied with “Mr. Imperato.”

Again, AUSA Imperato denied Cluff’s statement, accused him of lying to the

court, and asked the court to allow him to withdraw his guilty plea. Instead,

the district court recessed the hearing to give the parties time to resolve the

issue.

The day before the second sentencing hearing, the Government filed a

modified motion for sentence reduction. The motion alleged that Cluff made

false statements under oath at the December 1 hearing and, therefore, he did

not accept responsibility as contemplated by the Sentencing Guidelines, as was

required by the plea agreement. The Government then withdrew its previous

recommendation concerning acceptance of responsibility and recommended he

be given a two-level increase for obstruction of justice under U.S.S.G. § 3C1.1. 2

However, given Cluff’s substantial assistance as an informant, the

Government recommended a downward departure under § 5K1.1.

The parties reconvened before the court on December 22, 2015. Again,

Cluff accepted responsibility. In addition, he stated that if he misconstrued or

misunderstood the agreement, he wanted to apologize to AUSA Imperato. At

the conclusion of the hearing, the district court sentenced him to 99 months of

imprisonment followed by 5 years of supervised release. In so ruling, the court

This changed his recommended guideline range from 46 to 57 months to 80 to 99

2

months, which included the departure under § 5K1.1.

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declined to grant Cluff a reduction for acceptance of responsibility. Instead,

the court imposed an additional two points for obstruction of justice but

reduced his sentence by granting the Government’s motion for a § 5K1.1

departure.

Cluff then filed a timely motion for new trial, arguing the Government

breached the plea agreement by recommending that the court deny acceptance

of responsibility and impose a two-level increase for obstruction of justice.

After a hearing, the district court denied Cluff’s motion for new trial, reasoning

that he had made a materially false statement at the December 1, 2015

hearing. 3 Accordingly, the court found the Government was not obligated to

recommend a downward adjustment for acceptance of responsibility and, thus,

did not breach the plea agreement.

III.

As a preliminary matter, the Government argues this appeal should be

dismissed as a result of the appellate waiver in the plea agreement. However,

the appeal may proceed notwithstanding the waiver. See United States v.

Purser, 747 F.3d 284, 289 (5th Cir. 2014) (stating a claim for breach of a plea

agreement may be raised despite the waiver provision of the plea agreement);

United States v. Roberts, 624 F.3d 241, 244 (5th Cir. 2010).

A district court’s ruling on a motion for new trial is reviewed for an abuse

of discretion. United States v. Piazza, 647 F.3d 559, 564 (5th Cir. 2011). A

claim that the government breached the plea agreement is reviewed de novo

unless the defendant failed to preserve his objection, in which case the claim

is reviewed for plain error. United States v. Kirkland, 851 F.3d 499, 502–03

3 Although Cluff had made the same assertions before the December 1, 2015 hearing,

the district court determined that this was the first instance Cluff had made a “materially

false statement to a judge that would trigger an obstruction of justice enhancement and

require the withdrawal of the recommendation for acceptance of responsibility.”

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(5th Cir. 2017); Purser, 747 F.3d at 290; Puckett v. United States, 556 U.S. 129,

131 (2009).

Cluff did not object to the district court’s findings regarding acceptance

of responsibility or obstruction of justice before the conclusion of the second

sentencing hearing. Instead, he waited to raise the issues now on appeal in

his motion for new trial, which was filed on December 29, 2015, seven days

after the second sentencing hearing. Therefore, we find Cluff did not preserve

his objections, triggering plain error review. In order to succeed under plain

error, Cluff must show there was an error or defect that was clear or obvious

and affected his substantial rights. United States v. Escalante-Reyes, 689 F.3d

415, 419 (5th Cir. 2012) (en banc).

Finally, we “accept[] the district court’s factual findings unless clearly

erroneous.’” United States v. Pizzolato, 655 F.3d 403, 409 (5th Cir. 2011)

(quoting United States v. Elashyi, 554 F.3d 480, 501 (5th Cir. 2008)).

IV.

Cluff asserts the Government breached the plea agreement in two ways:

first, by withdrawing its recommendation that he be granted a downward

adjustment for acceptance of responsibility; and second, by requesting a two-

level increase for obstruction of justice.

In interpreting terms of a plea agreement, courts are to apply general

principles of contract law. United States v. Long, 722 F.3d 257, 262 (5th Cir.

2013). “[W]hen a plea rests in any significant degree on a promise or

agreement of the prosecutor, so that it can be said to be part of the inducement

or consideration, such promise must be fulfilled.” United States v. Saling, 205

F.3d 764, 767 (5th Cir. 2000) (internal quotations and citations omitted). To

determine whether the terms of the plea agreement have been violated, the

court must consider “whether the government’s conduct is consistent with the

defendant’s reasonable understanding of the agreement.” Pizzolato, 655 F.3d

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at 409 (internal quotations and citations omitted). The court should also

consider both express and implied terms of the plea agreement. See United

States v. Munoz, 408 F.3d 222, 227 (5th Cir. 2005).

Cluff’s plea agreement provided that “[a]t the time of sentencing, the

United States agrees to recommend that the defendant receive a two (2) level

downward adjustment pursuant to U.S.S.G. Section 3E1.1(a) should the

defendant accept responsibility as contemplated by the Sentencing

Guidelines.” The agreement also stated that “the United States reserves the

right . . . to set forth or dispute sentencing factors or facts material to

sentencing.”

Section 3E1.1 of the Sentencing Guidelines permits a two-level decrease

in a defendant’s sentence so long as he clearly demonstrates acceptance of

responsibility. The Guidelines also authorize a court to increase the offense

level by two levels for obstructing justice if:

(1) the defendant willfully obstructed or impeded, or

attempted to obstruct or impede, the administration of

justice with respect to the investigation, prosecution, or

sentencing of the instant offense of conviction, and (2) the

obstructive conduct related to . . . the defendant’s offense of

conviction and any relevant conduct.

U.S.S.G. § 3C1.1. The commentary provides a non-exhaustive list of examples

of conduct covered by the enhancement, including “providing materially false

information to a judge or magistrate judge.” U.S.S.G. § 3C1.1, comment.

(n.4(F)). The Guidelines defines material as “evidence, fact, statement, or

information that, if believed, would tend to influence or affect the issue under

determination.” U.S.S.G. § 3C1.1, comment. (n.6). The commentary of § 3E1.1

then states that “[c]onduct resulting in an enhancement under § 3C1.1

(Obstructing or Impeding the Administration of Justice) ordinarily indicates

that the defendant has not accepted responsibility for his criminal conduct.”

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U.S.S.G. § 3E1.1, comment. (n.4). In other words, “[a]n obstruction of justice

charge almost always necessarily militates against an acceptance of

responsibility recommendation by the government and a sentence reduction by

the district court.” United States v. Quintero, 618 F.3d 746, 751–52 (7th Cir.

2010). For the reasons discussed below, both of Cluff’s theories concerning the

Government’s alleged breach fail.

A.

We first address Cluff’s claim that the Government breached the plea

agreement by withdrawing its recommendation that he receive acceptance of

responsibility credit. Cluff acknowledges that per the plea agreement, the

Government only agreed to recommend a downward adjustment for acceptance

of responsibility if he “accept[ed] responsibility as contemplated by the

Sentencing Guidelines.” We have previously held that the Government does

not breach a plea agreement by withdrawing a recommendation for, or failing

to recommend, acceptance of responsibility credit where the agreement, such

as the one at issue here, conditions the Government’s obligation to recommend

acceptance credit on the defendant “accepting responsibility as contemplated

by the Sentencing Guidelines,” and the defendant fails to do so.

In United States v. Mejia, No. 93-2611, 24 F.3d 239 (5th Cir. 1994) (per

curiam) (table), 1994 WL 243287, at *1, 4 we held that the Government did not

breach the plea agreement by failing to recommend a three-point reduction for

acceptance of responsibility because the defendant “minimiz[ed] his role in the

offense during his interview with the probation officer.” Thus, the condition

necessary to trigger the Government’s obligation to recommend the reduction

promised in the plea agreement had not been satisfied.

4 See also 5th Cir. R. 47.5.3 (unpublished opinion before 1996 is precedential).

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In addition to the fact that Mejia is our binding precedent, our court has

issued several unpublished opinions reaching the same conclusion. We find

these cases both instructive and persuasive. In United States v. Hernandez-

Garcia, 442 F. App’x 136, 137 (5th Cir. 2011) (per curiam), the district court

found the defendant had not given truthful testimony at the sentencing

hearing and had, therefore, obstructed justice. As a result, he was not entitled

to a reduction of his sentence for acceptance of responsibility. We agreed,

reasoning that “[b]ecause Hernandez did not accept responsibility under the

Guidelines, the condition triggering the Government’s obligation not to oppose

Hernandez’ request for an adjustment was not fulfilled; the Government was,

therefore, not in breach of the agreement by opposing his request for an

acceptance-of-responsibility adjustment.” Id. (emphasis omitted); cf. United

States v. Bell, 417 F. App’x 420, 422 (5th Cir. 2011) (per curiam) (holding the

same where the defendant “offered exculpatory and irrelevant interpretations

of transactions and events; deflected responsibility; denied or discounted

relevant conduct; portrayed himself as a victim of unfair Government

treatment; and generally denied or minimized his culpability” at the

sentencing hearing). A contrary unpublished opinion, United States v.

Antunez, 269 F. App’x 528 (5th Cir. 2008) (per curiam), finding breach of the

plea agreement, is error in light of Mejia.

Here, the district court found Cluff obstructed justice by making a

materially false statement to the court “when he claimed the Government

informed him he would not be prosecuted.” As a result the court determined

the Government had not breached the plea agreement because Cluff had not

accepted responsibility as contemplated by the Guidelines. Whether Cluff

made a materially false statement to the judge is a fact issue and, unless

clearly erroneous, we defer to the district court. Pizzolato, 655 F.3d at 409.

Given the fact-intensive nature of this inquiry, the district court was in a better

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position to make that determination, which was not clearly erroneous.

Accordingly, we defer to the district court’s determination that Cluff made a

materially false statement. In light of Cluff’s statement, the condition

necessary to obligate the Government to recommend acceptance was never

triggered. Thus the Government did not breach the plea agreement by

recommending that the district court deny acceptance of responsibility credit

to Cluff.

B.

We now turn to Cluff’s assertion that the Government breached the plea

agreement by moving to increase his sentence by two levels for obstructing

justice. Cluff argues the condition in the plea agreement created an implicit

promise not to argue for an enhancement. He directs the court to United States

v. Munoz, 408 F.3d 222 (5th Cir. 2005). In Munoz, we found there was an

implied promise that the Government would not argue for any enhancement

not included in the plea agreement. The Government breached the plea

agreement by advocating for an enhancement for an abuse of trust after the

parties agreed to a specific guideline calculation, which did not include that

particular enhancement. Id. at 227. We held that “[e]ven though the

Government reserved the right to ‘dispute sentencing factors or facts material

to sentencing,’ the Government implicitly promised not to argue for an

enhancement that was not part of the plea agreement.” Id.

However, Cluff’s case is distinguishable from Munoz. The controlling

factor in Munoz was that the parties stipulated to the total offense level. The

agreement also set forth a specific guideline calculation that included a list of

adjustments and enhancement that would apply to the defendant’s sentence,

and that list did not include the enhancement the Government attempted to

proffer at sentencing. There were no such provisions in Cluff’s plea

agreement—the agreement did not stipulate to a total offense level or include

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a list of potential enhancements. The agreement here merely provided that

the Government would recommend credit for acceptance if Cluff accepted

responsibility as contemplated by the Guidelines, and he failed to do so. Thus,

his reliance on Munoz is improper. See Purser, 747 F.3d at 294 (finding that,

unlike Munoz, there was no provision in the plea agreement regarding a total

offense level and therefore, there was “no implicit commitment on part of the

government as to any Guidelines provisions not mentioned in the plea

agreement”).

Cluff’s agreement also stipulated that the Government retained the right

“to set forth or dispute sentencing factors or facts material to sentencing.” This

provision is broad enough to cover enhancements such as the one at issue here

regarding obstruction of justice. The same provision was included in the plea

agreement in Munoz, but the Government was precluded from relying on it

given that the parties stipulated to the total offense level. Because Cluff’s

agreement did not stipulate to a total offense level, the Government was

entitled to dispute facts material to sentencing and recommend enhancements

not specifically mentioned in the plea agreement.

Under the circumstances presented here, it was not improper to deny a

reduction for acceptance of responsibility and impose an increase for

obstruction of justice. See United States v. Rodriguez, 942 F.2d 899, 902–03

(5th Cir. 1991) (upholding the district court’s denial of acceptance of

responsibility and imposition of an obstruction of justice enhancement). The

language of Cluff’s plea agreement was clear. The Government was only

obligated to recommend a reduction for acceptance of responsibility if Cluff

accepted responsibility as contemplated by the Guidelines. He failed to do so.

As a result, the Government was not required to recommend acceptance credit

and did not breach the plea agreement by advocating against such a reduction.

In addition, the agreement provided that the Government retained the right to

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bring up other sentencing factors or facts material to sentencing. There was

nothing in the agreement that prevented the Government from raising the

obstruction enhancement. While there are “extraordinary cases in which

adjustments under both §§ 3C1.1 and 3E1.1 may apply,” this is not one of those

cases. U.S.S.G. § 3E1.1, comment. (n.4). Accordingly, we conclude the

Government did not breach the plea agreement.

V.

Next, Cluff argues judicial estoppel should have prevented the

Government from advocating for the obstruction of justice enhancement and

that its actions constituted prosecutorial vindictiveness. Given that neither

issue was raised in the district court, we review for plain error. United States

v. Rodriguez, 602 F.3d 346, 351 (5th Cir. 2010).

A.

We first address his claim that the Government was judicially estopped

from arguing for an obstruction enhancement. Judicial estoppel is a doctrine

that “‘prevents a party from asserting a position in a legal proceeding that is

contrary to a position previously taken in the same or some earlier

proceeding.’” Gabarick v. Laurin Mar. (Am.) Inc., 753 F.3d 550, 553 (5th Cir.

2014) (quoting Ergo Sci., Inc. v. Martin, 73 F.3d 595, 598 (5th Cir. 1996)). At

the outset, judicial estoppel “has apparently never been applied against the

government in a criminal case.” Nichols v. Scott, 69 F.3d 1255, 1272 (5th Cir.

1995). However, we have previously assumed without deciding that judicial

estoppel can apply to the government in criminal cases. United States v.

McCaskey, 9 F.3d 368, 378–79 (5th Cir. 1993) (per curiam). Assuming that the

doctrine can apply to the government, to succeed Cluff must first establish that

“the position of the party to be estopped is clearly inconsistent with its previous

one; and [second,] that party must have convinced the court to accept that

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previous position.” Hall v. GE Plastic Pac. PTE Ltd., 327 F.3d 391, 398 (5th

Cir. 2003) (quotation omitted).

According to Cluff, the Government threatened it would not file a § 5K1.1

motion and would withhold a recommendation for acceptance of responsibility

if he filed the motion to dismiss the indictment. Cluff disregarded the threat

and filed the motion to dismiss. Despite its threat, the Government filed

objections to the PSR that were consistent with the plea agreement,

recommended he receive a downward adjustment for acceptance of

responsibility, and filed the § 5K1.1 motion. It was not until Cluff’s statements

at the December 1, 2015 sentencing hearing that the Government changed

positions by filing a modified motion for sentence reduction seeking to

withdraw its recommendation for a reduction for acceptance of responsibility

and recommending an enhancement for obstruction of justice.

Cluff is correct in his assertion that the position taken by the

Government before the December 1, 2015 hearing was inconsistent with its

position after the hearing. Yet, he has not shown that the Government

convinced the district court to accept the previous position. Cluff relies on the

district judge’s statement during the December 22, 2015 hearing stating, “I . . .

hereby decide and, to whatever extent necessary, reverse the prior ruling

relative to acceptance,” to show that the court accepted the previous position

and intended to reverse it. However, an examination of the record shows the

court did not make any rulings during the December 1 hearing. Instead, the

district judge recessed the hearing and reset it for December 22 to give the

parties time to resolve the discrepancy. The acceptance of responsibility and

obstruction of justice issues were not decided until the December 22 hearing.

Thus, the Government was not estopped from recommending that the court

deny a reduction for acceptance of responsibility and to instead apply a two-

level increase for obstructing justice.

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B.

As for Cluff’s prosecutorial vindictiveness claim, he acknowledges that

vindictiveness does not typically arise unless “a defendant receives a harsher

sentence after winning an appeal or habeas petition,” and that he has not

received a second sentence. Nevertheless, Cluff takes issue with the various

positions articulated by the Government from the time of his plea to sentencing

and argues these actions demonstrated vindictiveness. 5

A defendant can prove vindictiveness in one of two ways: first, he can

present objective evidence to show that the prosecutor’s actions were designed

to punish him for asserting a legal right; and second, he may be able to show

sufficient facts that give rise to a presumption of vindictiveness. United States

v. Saltzman, 537 F.3d 353, 359 (5th Cir. 2008). A presumption of

vindictiveness only arises “where there exists a realistic likelihood of

vindictiveness.” Id. (internal quotations omitted). The presumption does not

arise if, after examining the prosecutor’s actions in the context of the entire

proceeding, “any objective event or combination of events in those proceedings

should indicate to a reasonable minded defendant that the prosecutor’s

decision . . . was motivated by some purpose other than a vindictive desire to

deter or punish appeals.” United States v. Wells, 262 F.3d 455, 466–67 (5th

Cir. 2001) (internal citation and quotation omitted). “Where there is no such

reasonable likelihood, the burden remains upon the defendant to prove actual

vindictiveness.” Alabama v. Smith, 490 U.S. 794, 799 (1989).

There is no indication the Government’s actions were designed to punish

Cluff. First, he was not asserting a legal right. Second, the terms of the plea

5 These various positions included the threats made regarding the motion to dismiss,

which despite the filing of the motion to dismiss, were not carried out until sentencing, and

the objections to the PSR, to the extent it did not conform to the plea agreement.

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agreement provided that the Government would recommend a reduction for

acceptance of responsibility only if Cluff accepted responsibility as

contemplated by the Guidelines. Once Cluff stated at the December 1 hearing,

under oath, that he did not believe he would be charged at all as a result of his

cooperation, it was the Government’s belief that he had made a materially false

statement to the court, which entitled the Government to recommend against

acceptance of responsibility. Notably, the Government still recommended he

receive a reduction in his sentence pursuant to § 5K1.1, further evincing it did

not intend to punish him improperly. Accordingly, the record does not support

Cluff’s claim of prosecutorial vindictiveness.

VI.

For the foregoing reasons, we hold that the district court did not err in

denying Cluff’s motion for new trial. The district court’s judgment is, therefore,

AFFIRMED.

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