Friday, July 30, 2004

Blakely News from Around the Country

News Stories

PR Web has an article entitled, “U.S. Supreme Court Issues Decision Predicted to 'Wreak Havoc' With Trial Courts States Prison Advocacy Attorney Isaac M. Jaroslawicz.”

Tennessee opts to let Jack help figure out the state’s guideline problems

New Cases

From the Blakely-rich state of Maine, we get United States v. Zompa, 2004 U.S. Dist. LEXIS 14335 (NO. 04-46-P-S-01) (D. Me., 2004).

Chief United States District Judge George Z. Singal issued an opinion in Zompa which reminds us that Marbury v. Madison requires the “judicial department to say what the law is.” And the guidelines are not good law in his court:

In light of the Supreme Court's decision in Blakely and the circumstances presented by this case, the Court finds that any enhancement of Defendant's base offense level based on my finding as to a particular drug quantity would violate the Defendant's right to be sentenced based upon only those facts that he has admitted or that the Government has proven beyond a reasonable doubt.

Moving on to the increasingly sticky severability issue, Chief Judge Singal opts to use the portions of the guidelines that are constitutional:

This Court does not believe that the Blakely decision renders the USSG completely unconstitutional. Rather, the Court concludes that the unconstitutional aspects of the Guidelines (i.e. judicial fact finding utilizing a preponderance of the evidence standard as a procedural vehicle for sentence enhancement) can be severed from the rest of the Guidelines. With these unconstitutional portions excised, the Guidelines can still serve their intended purpose of promoting honesty, uniformity and proportionality in sentencing. See Ameline, 2004 U.S. App. LEXIS 15031, 2004 WL at *11.

The Second Circuit recently decided US v. Jasper, 2004 U.S. App. LEXIS 15543 (No. 03-1720 )(2d Cir. 2004), a case involving a challenge to two guidelines enhancements. The court’s unpublished opinion states that the court will defer on the sentencing challenge until the Supreme Court decides on the circuit’s certification request. In the court's own words:

Our Circuit has recently certified to the Supreme Court several questions related to Blakely v. Washington, 124 S. Ct. 2531 (June 24, 2004). We will defer consideration of Jasper's sentencing challenge pending resolution of our request for certification. Once that is resolved, we will set a timetable for further briefing, should such briefing be appropriate. All of Jasper's other arguments are unavailing, and we reject them for substantially the same reasons expressed by the district court.

News from Other Blogs

Marcia Oddi of the Indiana Law Blog has a very useful post which provides an overview of Blakely developments in the 7th Circuit and Indiana state courts. You can read what appears to be a first installment here.

Lyle Denniston takes a look at "Those other Blakely cases." The post takes a look at Bijou and Pineiro. The post also contains the following line:

His interest in cockfighting, in fact, led to his troubles with the law.

A story all too common. Very sad.

A Plethora of Blakely Resources at the First District Appellate Project

Yes, I would say that there is a plethora of Blakely resources at the First District Appellate Project.

Among the useful stuff:

Thursday, July 29, 2004

SG's Opposition Briefs in Bijou and Pineiro (And More)

The SG has filed opposition briefs in US v. Bijou and US v. Pineiro.

Here's a key passage which appears in both opposition briefs:

The petition in this case should be held pending the disposition of the petitions in Booker and Fanfan, rather than granted. For the reasons set forth in the government’s response to the oppositions to the petitions in Booker and Fanfan, those cases present better vehicles for resolution of the applicability of Blakely to judicial factfinding that results in upward adjustments under the Sentencing Guidelines.

Update: Pineiro's reply brief is available.
Information Overload: Despite my label, you should read Lyle Denniston's most recent SCOTUS blog post. Lyle summarizes the day's frenzied events and offers a look inside the judge's chambers.

Thoughts on the NACDL/NAFD Amicus Brief

If you haven’t read this brief, you should (get it here). It raises some very good questions about the suitability of Booker and Fanfan as test cases for the guidelines. The brief makes two major points: (1) the questions as they are currently framed are inadequate to resolve the Blakely impasse; (2) US v. Bijou, is substantively and procedurally, a better vehicle than US v. Fafan.

Foe ease of reference, here are the SG’s questions, side-by-side with the questions proposed by NACDL/NAFD:

SG’s First Question

Whether the Sixth Amendment is violated by the imposition of an enhanced sentence under the United States Sentencing Guidelines based on the sentencing judge’s determination of a fact (other than a prior conviction) that was not found by the jury or admitted by the defendant.

NACDL/NAFD’s First Question

Whether a district court violates the Fifth and Sixth Amendments by relying upon facts that increase the maximum sentence available under the United States Sentencing Guidelines (other than the fact of a prior conviction) when those facts were not charged in the indictment and either found by the jury on proof beyond a reasonable doubt or admitted by the defendant.

SG’s Second Question

If the answer to the first question is “yes,” the following question is presented: whether, in a case in which the Guidelines would require the court to find a sentence enhancing fact, the Sentencing Guidelines as a whole would be inapplicable, as a matter of severability analysis, such that the sentencing court must exercise its discretion to sentence the defendant within the maximum and minimum set by statute for the offense of conviction.

NACDL/NAFD’s Second Question

If the answer to the first question is “yes,” the following question is presented: What role do the Sentencing Reform Act, the Sentencing Guidelines, and Federal Rule of Criminal Procedure 32 continue to play in federal criminal sentencing? 

I won’t summarize the brief; instead, I’ll highlight a few arguments from section one and offer some thoughts.

Point One - The brief makes an interesting point about the SG’s use of the phrase “enhanced sentence” in the first question, suggesting that the term is ambiguous and can have two meanings. The confusion emanates from whether the phrase refers to “upward” adjustments (use of a special skill, for example) or whether it refers to judicial factfinding that determines the base level offense (or allows the judge to go above the top of the guidelines range for the base offense).

Although the brief never cites US v. Harris, this section of the brief, and the reformulated first question, would appear to put Harris’s viability before the court. The proposed question may not compel the Court to confront Harris, but it certainly would allow it to discuss judicial findings of fact which trigger mandatory minimums. This likely a good thing, as distinguishing Harris now that Blakely is the law is difficult (as I crudely noted here; Prof. Barkow has her doubts about Harris, too).

I spoke with Prof. Berman about this point. I asked him if he thought the reformulated question might put Harris before the Court, he said "possibly:" The use of the term "maximum" suggests to me they are not, at least consciously, trying to argue Harris (yet).  But I did notice the more frequent mention of Apprendi, rather than Blakely, in the NACDL petition, which suggests to me they are, in a sly way, trying to suggest that the only "new" rule was Apprendi, not Blakely. (italics are from an email exchange with Prof. Berman)   

If the proposed first question does, in fact, put Harris before the Court, it could help make the Congress’s job much easier. One of Prof. Bowman’s arguments in favor of his proposal to raise the top of the guideline range to the statutory maximum was that making such a change to the guidelines would put Harris before the Court. Prof. Bowman argued that a challenge to his proposal would give the Court an opportunity to overturn or affirm Harris, which would help shape a post-Blakely II legislative response. It appears as though the first question proposed in the brief may accomplish that end without altering the guidelines.

Point Two - The government’s second question refers to a “sentence-enhancing fact.” The amicus brief argues that the question shouldn’t contain a loaded concept like “sentence- enhancing facts.”

This point is particularly salient in the drug quantity context, where prior to Blakely, the courts of appeals were split on whether drug quantity is an element or a sentencing factor under 21 USC 841(b). The brief ties this point together nicely on pages 17 and 18.

It’s unlikely that the Court will answer all of our questions, but the distinction between a sentencing factor, an element and a sentence-enhancing fact is at the center of this debate. Perhaps the latter category is a species of a “super-fact,” as described by King and Klein.

These entitlements turn, it seems to us, on whether facts identified in Blakely and Apprendi are functioning as elements, or whether, as some have argued in the past, they are hybrids, not quite elements, and not sentencing factors, but something in between - superfacts that require some procedural protections but not all.
- King and Klein, Beyond Blakely. 
Finally, and in support of my own publishing interest, the argument raised in this section of the brief may pave the way for resolving the statutory question involving drug quantity (raised on pages 17 and 18). The brief advises the court to steer clear of the statutory issue for now. This is probably good advice. The courts have shown a propensity to conflate statutory interpretation and constitutional rules (as many post-Apprendi drug quantity cases did), which is unfortunate because it has likely added to the blurring of elements and sentencing factors. Leaving the statutory question for another day will allow the Court to focus on the element/sentencing factor/super factor issue.

Please feel free to use the "comments" section to discuss this, or any other relevant issue.

More From The SG's Office (and some other news)

Back from lunch, I see that the Blakely world has changed, yet again…

A few new SCOTUS filings are available:

A motion by the government to exceed the usual page limits…and, a far more exciting reply brief from the SG.

Lyle Denniston (I got it right this time, Lyle) has some inside information on the state of Blakely affairs in the government. The post is entitled, “Blakely: the Government holds fast.” This is a good post to read before you read the SG's brief.

A news story from the Metropolitan News Enterprise is reporting on a California court of appeals decision which ruled that Blakely does not apply to consecutive sentencing. 

Thursday's News

News from the SCOTUS  

Lyle Denniston of the SCOTUS Blog has the inside scoop on the current temperament in the Supreme Court. He says that the Court is in the mood to act quickly but yesterday’s mass of filings will do little to make things move quickly.

Correction: Earlier this morning I mistakenly attributed this report to Amy Howe, when it was Lyle Denniston filing the report under Amy Howe's login name.
Blakely and California

Sentencing Law and Policy has two good posts on Blakely’s impact in California. The first post is a link to a memo summarizing Blakely’s impact in California; the second post discusses Blakely in a different context – consecutive sentences. Does Blakely require the jury to decide whether consecutive sentences are warranted? Right now the answer is no, but with all Blakely issues that could change by the afternoon. 

The LA Times has an editorial entitled, “Judges in Shackles.”

Blakely and Maine

The Press Herald of Maine is covering Fanfan in an article entitled, “U.S. Supreme Court asked to hear Maine case.”

Blakely in Rhode Island

The Pawtucket Times reports that U.S. District Judge Mary Lisi has postponed the trial of two ex-Lincoln Park officials on wire fraud and conspiracy charges.

Blakely in Massachusetts
The Boston Globe reports, “Judges split over sentencing guidelines.”
Blakely in Washington

The Seattle Times confirms what readers of this blog already know: "Talk to any federal prosecutor in Seattle — or anywhere in the country, for that matter — and the same name will be on virtually all of their minds: Blakely."

The article has an interesting discussion on the Znetix fraud case and other securities matters.

Finally, There's A New Poll

Don’t forget to vote in the new poll. It’s located on the right-hand sidebar, below the Archives and the counter.

Wednesday, July 28, 2004

The Polls Are Now Closed

I’ve closed the polls. The question asked what the appropriate remedy is if a court determines the guidelines are unconstitutional. And the winner is… Apply the portions of the guidelines that are constitutional.

As you’ll see below, the spread between most of the choices is rather thin.

(21 – 26%)  - Bifurcation/Sentencing Jury
(28 – 35%) - Apply the portions of the guidelines that are constitutional
(22 – 28%) - The judge should sentence the defendant between the minimum and maximum
(09 – 11%) – Other

Now that the remedy poll has passed, it’s time to move towards deciding how we’re going to resolve the Blakely mess.

I’ve stared a new poll which if you want to answer will require you to read the NACDL/NAFD brief.

The question is: Should the Supreme Court grant cert in US v. Bijou?

You have three choices:
- Yes, instead of Fanfan
- Yes, but with Fanfan
- No

The poll is located on the right-hand sidebar, below the Archives and counter.

The Responses Have Arrived

The NACDL amicus brief is now available here.

The brief is divided into two parts. The first part claims, “The questions presented by the government should be revised in a manner that simultaneously simplifies them and ensures that the Court will resolve all of the issues on which the lower courts most need guidance.”

The second part argues (from the TOC): “The Court Should Grant Certiorari in Booker or in No. 04-5263, Pineiro v. United States, Should Also Grant Certiorari in No. 04-5272, Bijou v. United States, and Should Deny the Petition for Certiorari Before Judgment in Fanfan.”

(From a very quick review, there’s a lot to discuss here. More later…)

The SCOTUS Blog has a post which provides an itinerary (as far as one is possible) of the day's expected filings. So, stay online, there's more to come.

Update: Booker & Fanfan Filings

Booker's Brief in Response

Booker's Response to the Motion to Expedite

Fanfan Response to Motion to Expedite

Fanfan Bio

Fanfan Appendices

(Fanfan documents from Sentencing Law and Policy)

Deadline Wednesday

Today is an important day for the Respondents in Booker and Fanfan. Today is the deadline, according to the SG’s suggested schedule, for respondents to file responses to the government’s petitions in Fanfan and Booker.

Case Developments.

Sentencing Law and Policy has news from New Mexico in a case called US v. Pedro Quijada which presents some interesting Blakely meets Almendarez-Torres issues.  This is an interesting case in which the judge has apparently decided that Blakely bars him from making certain findings of fact which relate to the nature of his prior conviction. Is that vague enough?

US v. Sisson, 2004 U.S. Dist. LEXIS 14162(NO.: 01-10185-EFH)(D. Mass., 2004)

US District Judge Edward F. Harrington has made a decision with regards to sentencing:

The Court shall recommence drawing criminal cases on September 1, 2004 in view of the United States Supreme Court's decision in Blakely v. Washington, No. 02-1632, decided June 24, 2004.
Judge Harrington explains his decision, which embraces the reasoning of Judge Presnell in US v. King:

In returning to the criminal draw, the Court shall follow the implications of Blakely on the Sentencing Commission Guidelines as cogently reasoned in the case of United States v. King, No. 6:04-cr-35-Orl-31KRS (M.D. Fla. July 19, 2004), pending further direction by the Court of Appeals for the First Circuit. In brief, it shall treat the Guidelines as unconstitutional in all cases and shall adhere to the statutory commands setting sentences. See United States v. Einstman, 2004 WL 1576622, 6 (S.D.N.Y. 2004). In other words, in all cases, the Court shall handle the sentencing as courts handled sentencing before the Guidelines -- by making a full examination of an individual defendant's personal character, family responsibilities, medical and mental condition, criminal record, and the particular circumstances surrounding the crime and imposing an appropriate sentence within the broad range set by Congress, after deep reflection informed by his [*4]  experience in life and in the law. Despite a return to an indeterminate sentencing scheme, the Court "will continue to rely on the Guidelines as recommendations worthy of serious consideration." King, at 12. The Guidelines are to be considered as guidelines and not as mandates which have destroyed traditional judicial discretion.

News and Analysis.

A few helpful posting from the SCOTUS Blog are online. Lyle Denniston has a post entitled, "Blakely’s impact on state sentencing guidelines." The post discusses the efforts of the National Center for State Courts to decipher Blakely's impact on the states; the report draws a preliminary conclusion that 12 states will be affected by Blakely.
The Boston Herald reports that U.S. District Court Judge Nancy Gertner of Massachusetts will not use the guidelines when sentencing criminal defendants. Interestingly, the last paragraph quotes a defense attorney who thinks that without the benefit of the guidelines Judge Gertner may sentence his client to a longer prison term.
Poll Results. A few days ago, I added a poll question to this site. The poll is located below the “Archives” listing, on the right-hand sidebar. The question is: Assuming that the enhancements in the guidelines are unconstitutional, which of the following remedies is appropriate:

1 - Bifurcation/Sentencing Jury
2 - Apply the portions of the guidelines that are constitutional
3 - The judge should sentence the defendant between the minimum and maximum
4 - Other

As of 8:05am, the results are as follows (total votes, followed by percentage):

(14 – 24%)  - Bifurcation/Sentencing Jury
(19 – 32%) - Apply the portions of the guidelines that are constitutional
(19 – 32%) - The judge should sentence the defendant between the minimum and maximum
(07 – 12%) - Other

To say that this poll is not scientific is an understatement, but I’ll say that I’m not surprised that the results are all over the map.

I’ll leave the poll up only for a few more days, so vote now. If you’d like to suggest a poll question for the next poll, email me.

Tuesday, July 27, 2004

Meet Other Blakely Devotees in Washington DC

The Washington Legal Foundation will host a "Media Nosh" on August 4 dedicated to Blakely issues. The title of the "nosh" is "Federal Sentencing In Flux: The Impact Of Blakely On White Collar Criminal Enforcement."

You can download the program here. And, yes - there will be a continental breakfast for you to nosh. I plan on attending, I'll post a report that afternoon.

Update: "Media Nosh" reminds me a a very funny article by Judge Kozinski and Prof. Volokh entitled, "Lawsuit, Shmawsuit." If you like to laugh, read it.

Petition for Rehearing in Blakely v. Washington

The state of Washington has just filed its petition for a rehearing, it's available here.

Here's a very quick summary:

The petition argues that the Court's ruling was a premised on a "new, precept-altering" interpretation of Apprendi, which merits a rehearing. The petition also seizes on what it describes as "unprecedented turmoil and confusion" in the lower courts as a justification for a rehearing. Finally, the brief suggests that this case is needed to address important issues faced by the states, which the brief implies will not be answered by either Booker or Fanfan

 FYI - The petition cites a number of recent articles and papers discussing Blakely and its aftermath which have been circulated on the web.

Case Developments

Sentencing Law and Policy has a few more district court opinions available here. Prof. Berman reports:

US District Judge George Z. Singal of the District of Maine (where our old friend Fanfan is from) decided in US v. Zompa, 04-46 that Blakely applies to the federal guidelines, but the federal guidelines are severable and thus the defendant is to be sentenced only based on facts admitted by the defendant.


Judge Gregory Presnell of the Middle District of Florida continues to adhere to his view that Blakely renders the guidelines wholly inapplicable in all cases.

Tuesday Morning News

In an article about the 8th Circuit ruling in US v. Mooney, In Forum reports: Ruling creates confusion in courts: Felony sentences are left uncertain (You won't want to miss the cowboys pictured next to this story, partner)

In a story about Judge Jack Weinstein, reiterates that the judge thinks the Guidelines are not dead.

The Milwaukee Journal Sentinel has a story entitled, “Sentencing decision makes justice system wary.”

The article begins with the following few paragraphs:
A recent U.S. Supreme Court decision has thrown the federal justice system into chaos.

Or has it?

Media reports around the country have cited examples of sentences reduced from 20 years to one; from four years to 16 months. Web pages quote judges and lawyers who fear the sky is falling.

Someone should do something about those “web pages” out there. The article continues to reassure Milwaukee that all is well in their fine city. Nothing to see here folks. Move along. Party on, Milwaukee.

Monday, July 26, 2004

Motion to Expedite in US v. Bijou

Well, the hits just keep on coming.

Jimmy Bijou is requesting that briefing for his petition to the Supreme Court, filed July 12, which raises a Blakely challenge to his sentence, be expedited. The motion says that the National Association of Criminal Defense Lawyers will file a petition on Bijou’s behalf Wednesday, "addressing the suitability of this case as a vehicle to decide the questions presented by the government in Fanfan and Booker."

Bijou appeals from a an unpublished per curiam opinion of the Fourth Circuit, available here. Unlike Booker and Fanfan, Bijou's case is not a drug case, but a conviction for possession of a firearm by a convicted felon. In his appeal to the Fourth Circuit, Bijou argued that his sentence of 240 months violated Apprendi because  his sentence was enhanced "based on conduct charged in two counts that were dismissed." Relying on United States v. Kinter, 235 F.3d 192, 201-02 (4th Cir. 2000), the court rejected Bijou's appeal because, "Apprendi does not require that a jury decide facts that increase a guideline range but do not increase the statutory maximum sentence."

Bijou’s cert petition is now available. The question presented is:

Whether a fact necessary for an increase in offense level under the United States Sentencing Guidelines must be alleged and proved according to the requirements of the Sixth Amendment as set forth in Blakely v. Washington, 2004 WL 1402697 (June 24, 2004)?

On page 16 of the petition, Bijou explains why his case is an "ideal" vehicle for resolving the Blakely mess:

This case has features which render it ideal for resolving the question of whether a fact necessary for an increase in sentence from a base offense level must be proved according to the procedures mandated by Apprendi and Blakely. First, this case is on direct review, and petitioner explicitly preserved the federal constitutional issue in the district court and in the Fourth Circuit. As a result, there is no procedural barrier to this Court’s considering the question presented.

Second, the Sixth Amendment violation was not harmless. The district court elevated petitioner’s sentence based on its finding that he possessed drugs in connection with the firearms. This finding increased petitioner’s sentence from the otherwise applicable base offense level by a factor of 10 years.

Last, this case is a stark illustration of the usurpation of the jury’s role by sentencing courts applying the Guidelines. The holdings in Blakely and Apprendi reflect "the need to give intelligible content to the right of jury trial" which is "a fundamental reservation of power in our constitutional structure." Blakely , 2004 WL 1402697 at *7. In this case, the same judge who excluded tainted drug evidence from the jury turned around at sentencing and used the same evidence to double the applicable sentencing range. The Court should grant certiorari to address the constitutionality of the Sentencing Guidelines under Blakely and Apprendi. 

Update: I edited this post to replace some of my words with those of the filing.

Tennessee Update

More news from Tennessee. The Daily Post-Athenian has a good story which gets into the nitty-gritty details of Tennessee's sentencing guidelines. An interesting passage from the article quotes Tenth District Chief Assistant District Attorney Sandra Donaghy who says that the Tennessee guidelines can be differentiated from the Washington guidelines:

“In Washington, they have a range of punishment (sentencing) that can be exceeded if the judge finds certain enhancement factors and mitigating factors can allow a sentence of less than statute guidelines,” Donaghy said. “Our statutes have ranges and we have enhancement factors that help determine the sentence within that sentencing range.”

Behind the Music (or the brief)

While looking through the SG’s filings in Booker and Fanfan, I realized that other than Paul D. Clement, I don’t know anything about the five other people on the brief. So, I looked them up. If you’re curious, here’s a little bit about the government’s Blakely team (on the brief, at least):  

Paul D. Clement, Acting Solicitor General   
It was easy to find information on the SG. General Clement’s impressive resume is summarized in this DOJ press release.  

Christopher Wray , Assistant Attorney General, Criminal Division, Department of Justice 
Another easy one. The DOJ has documented his background on their web site.    

Michael R. Dreeben, Deputy Solicitor General
Ok, now it starts to get a little harder to find out who these folks are. Here’s what I know.  

Mr. Dreeben attended college at the University of Wisconsin-Madison and received his law degree from Duke University. He was admitted to the bar in 1982 and has argued 29 cases before the Supreme Court. A few notable cases include: Virginia Bankshares, Inc. v. Sandberg, Bailey v. United States, Koon v. United States, Harris v. United States, and United States v. Cotton.  
James A. Feldman, Assistant to the Solicitor General
Mr. Felman has a BA from the University of Pennsylvania and a JD from Harvard Law School. He was admitted to the bar in 1983.  

Nina Goodman, Attorney  - Department of Justice
Nina's a mystery to me. I wasn't able to find a single piece of biographical information. Can anyone help?

Elizabeth Olson, Attorney  - Department of Justice Criminal DIvision
Ms. Olson is a 2002 graduate of Northwestern Law School and served as a law clerk to Judge Guido Calabresi on the U.S. Court of Appeals for the Second Circuit.   

Ms. Olson has two publications on Lexis. Fans of irony won’t want to miss reading the opening paragraph of the following article: 

The Constitution requires that prosecutors prove beyond a reasonable doubt every element that constitutes the crime charged against a criminal defendant. 1 For many years, legislatures have sidestepped this constitutional requirement by denying that certain aspects of a crime are "elements." Legislatures have instead labeled these aspects "affirmative defenses" 2 or "rebuttable presumptions" 3 and thus transferred to the defendant the burden of proving their presence or absence. More recently, state legislatures and Congress have used the term "sentencing factors" 4 to shift fact-finding responsibility regarding certain aspects of a crime from the jury to the judge, effectively lowering the required standard of proof from "beyond reasonable doubt" to "preponderance of evidence." 5   


US v. Mueffleman

US District Judge Nancy Gertner of the District of Massachusetts has issued an opinion in which she declares that guidelines as a whole are unconstitutional. The opinion is pretty long (39 pages), and from a quick read looks like a good one. You can get the opinion here.

Monday Morning Blakely News

Here is your morning Blakely news.

An editorial from this morning’s Washington Post implores, “Clean Up This Mess.” Meanwhile, the St. Petersburg Times of Florida is running an apparent rebuttal entitled, "A welcome judicial mess."

The Cincinnati Post
explains why the 6th Circuit's rehearing en banc of US v. Montgomery is moot. (She reached a deal with the prosecutor). has an article about Blakely's affect on judges, defense lawyers and prosecutors in Oklahoma. In addition to the usual Blakely background, the article explains why plea bargaining has come to a virtual halt.

# posted by Jason Hernandez : 7:00 AM  0 comments

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