US v. James Morris Seller
Filing
PUBLISHED AUTHORED OPINION filed. Originating case number: 4:13-cr-00783-RBH-1. [999701346]. [14-4568]
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4568
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JAMES MORRIS SELLERS,
Defendant – Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. R. Bryan Harwell, District Judge.
(4:13-cr-00783-RBH-1)
Argued:
September 17, 2015
Decided:
November 18, 2015
Before NIEMEYER, SHEDD, and KEENAN, Circuit Judges.
Affirmed by published opinion.
Judge Shedd wrote the opinion,
in which Judge Niemeyer and Judge Keenan joined.
ARGUED: William Fletcher Nettles, IV, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Florence, South Carolina, for Appellant.
Jimmie Ewing, OFFICE OF THE UNITED STATES ATTORNEY, Columbia,
South Carolina, for Appellee.
ON BRIEF: Kimberly H. Albo,
Research and Writing Specialist, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Columbia, South Carolina, for Appellant.
William N.
Nettles, United States Attorney, Columbia, South Carolina,
Alfred W. Bethea, Jr., Assistant United States Attorney, OFFICE
OF THE UNITED STATES ATTORNEY, Florence, South Carolina, for
Appellee.
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SHEDD, Circuit Judge:
A federal jury convicted James Morris Sellers of unlawfully
possessing a firearm, in violation of 18 U.S.C. § 922(g)(1). At
sentencing, the district court determined that Sellers qualified
as an armed career criminal under the Armed Career Criminal Act
(“ACCA”),
18
U.S.C.
§ 924(e),
because
his
three
prior
South
Carolina drug convictions were offenses “for which a maximum
term of imprisonment of ten years or more is prescribed by law.”
On appeal, Sellers contends that his prior drug convictions
do not qualify him as an armed career criminal because the state
court
sentenced
him
pursuant
to
South
Carolina’s
Youthful
Offender Act (“YOA”), S.C. Code Ann. § 24-19-50, which permits
courts to cap the maximum penalty for certain offenders at six
years in custody. Sellers acknowledges that we rejected this
argument in United States v. Williams, 508 F.3d 724 (4th Cir.
2007), but he contends that Williams is no longer good law in
light of our decision in United States v. Simmons, 649 F.3d 237
(4th Cir. 2011) (en banc).
We
reaffirm
progeny
reinforce
whether
a
prior
our
holding
in
Williams.
Williams’
directive
that
conviction
qualifies
as
a
Simmons
courts
and
its
evaluating
predicate
for
a
federal sentence enhancement look to the statutory penalty for
the prior conviction, not the sentence the defendant received.
As we explained in Williams, YOA offenses can qualify as ACCA
2
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predicates because the maximum statutory penalty for the prior
conviction is unaffected by the state court’s exercise of its
discretion to impose a sentence of six years or less in custody.
We therefore affirm the district court’s judgment.
I.
In February 1999, Sellers pled guilty in state court to
three indictments charging him with possession with intent to
distribute crack cocaine, in violation of S.C. Code Ann. § 4453-375(B). The court sentenced him to an indeterminate period of
custody not to exceed six years pursuant to the YOA, 1 which
provides that “[i]n the event of a conviction of a youthful
offender the court may:” (1) suspend the sentence and place the
youthful
offender
on
probation;
(2)
release
the
youthful
offender to the custody of the Youthful Offender Division before
sentencing for an observation and evaluation period of up to 60
days; (3) sentence the youthful offender indefinitely to the
custody
of
the
Department
of
Corrections
for
treatment
and
supervision until discharged by the Youth Offender Division, the
period of custody not to exceed six years; or (4) sentence the
1
Sellers and the Government both state in their briefs that
Sellers was sentenced to an indeterminate period of detention
not to exceed six years, but Sellers’ presentence report states
that the sentence was not to exceed five years. J.A. at 44 ¶ 21.
Whether Sellers was sentenced to five or six years has no impact
on our analysis.
3
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youthful offender under any other applicable penalty provision,
if it finds that he will not derive benefit from treatment. S.C.
Code Ann. § 24-19-50(1)-(4) (emphasis added).
In
March
unlawfully
2014,
a
possessing
federal
a
jury
firearm,
found
in
Sellers
violation
of
guilty
18
of
U.S.C.
§ 922(g)(1). The presentence report (“PSR”) recommended that the
district
court
sentence
Sellers
as
an
armed
career
criminal
pursuant to the ACCA. In relevant part, the ACCA imposes an
enhanced sentence on a defendant convicted of being a felon in
possession
of
convictions
a
for
firearm
a
if
“serious
the
drug
defendant
has
i.e.,
offense,”
three
an
prior
offense
carrying a maximum term of imprisonment of ten years or more. 18
U.S.C. § 924(e)(2)(A). The PSR identified Sellers’ three South
Carolina
drug
convictions
as
qualifying
“serious
drug
offense[s]” because the statute of conviction, S.C. Code Ann.
§ 44-53-375(B),
provided
a
maximum
term
of
15
years
of
imprisonment for a first offense and enhanced maximum sentences
for subsequent offenses.
Sellers objected to the PSR, asserting that the three prior
drug
convictions
were
not
punishable
by
a
maximum
term
of
imprisonment of ten years or more because the YOA imposed a
maximum penalty of six years in custody. Sellers recognized that
we
rejected
this
contention
in
Williams,
but
he
argued
that
Williams was abrogated by our decision in Simmons. The district
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court overruled Sellers’ objection and sentenced him as an armed
career criminal to a term of 210 months of imprisonment and five
years of supervised release.
II.
Sellers reiterates his objection on appeal, arguing, as he
did below, that his three prior drug convictions do not trigger
the ACCA’s sentence enhancement. In Sellers’ view, because the
sentencing judge failed to find that he would not derive benefit
from treatment, the YOA capped his sentence at six years.
In
considering
a
district
court’s
determination
that
a
defendant qualifies for an enhanced sentence under the ACCA, we
review
its
factual
findings
for
clear
error
and
its
legal
conclusions de novo. United States v. Wardrick, 350 F.3d 446,
451 (4th Cir. 2003).
A.
In
state
court,
Sellers
had
been
charged
with
and
pled
guilty to three counts of possession with intent to distribute
crack cocaine, in violation of S.C. Code Ann. § 44-53-375(B).
Because he was 20 years old at the time of his conviction, the
state court was permitted to sentence him under the YOA. See
S.C.
Code
discretionary
Ann.
§ 24-19-10(d).
sentencing
The
alternative,”
YOA
“sets
Williams,
508
forth
a
F.3d
at
727, that in pertinent part allows a sentencing judge to either
commit a youthful offender to an indefinite period of custody
5
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not to exceed six years or, if he “finds that the youthful
offender will not derive benefit from treatment,” to sentence
him “under any other applicable statutory provision,” S.C. Code
Ann. § 24-19-50(3)-(4).
In
Williams,
Carolina
the
conviction
defendant
for
argued
possession
that
with
his
intent
prior
to
South
distribute
crack cocaine did not qualify as an ACCA predicate despite the
statutory maximum penalty of 15 years in prison because he was
sentenced
to
an
indeterminate
period
of
confinement
not
to
exceed six years pursuant to the YOA. He asserted that once a
state court “uses the YOA to designate an offender as one who
cannot receive a sentence in excess of six years, the offense of
conviction no longer carries a possible term of imprisonment of
ten years or more and therefore does not qualify as a ‘serious
drug offense.’” Williams, 508 F.3d at 727. We squarely rejected
this
characterization
of
sentencing
under
the
YOA,
reasoning
that “the language of the YOA is permissive, not mandatory.” Id.
(emphasis added).
We further rejected the contention that we “should look to
the
sentence
actually
imposed,
rather
than
the
range
of
penalties to which [the defendant] was potentially subject,” to
determine
whether
a
prior
conviction
qualifies
as
an
ACCA
predicate. Id. at 728. Because the plain language of the ACCA
“directs courts to consider the statutory penalty for the prior
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conviction, not the sentence the defendant in fact received,” we
held
that
a
prior
conviction
“qualifies
as
a
‘serious
drug
offense’ if the statute of conviction permits the imposition of
a sentence of ten years or more.” Id. (emphasis in original). We
concluded that Williams’ prior drug conviction was one for which
a
maximum
prescribed
term
by
of
law,
imprisonment
of
despite
fact
the
ten
years
that
or
the
more
state
was
court
exercised its discretion to sentence him to a lesser term. Id.
at 730. Sellers now asserts that this holding has been abrogated
by our decision in Simmons.
B.
In Simmons, we considered whether a prior North Carolina
conviction was punishable by more than one year in prison under
“the
unique
statutory
regime
mandated
by
the
North
Carolina
Structured Sentencing Act.” 2 649 F.3d at 239-40 (emphasis added).
2
In Simmons, we were tasked with determining whether a
prior conviction qualified as a predicate for a federal sentence
enhancement under the Controlled Substances Act (“CSA”), which
imposes a mandatory minimum of ten years in prison if the
offense conduct occurred “after a prior conviction for a felony
drug offense has become final.” 21 U.S.C. § 841(b)(1)(B). The
CSA defines “felony drug offense” as a drug-related offense
“that is punishable by imprisonment for more than one year.” 21
U.S.C. § 802(44). The critical question was therefore whether
Simmons’ prior conviction was punishable by a prison term
exceeding one year.
The issue currently before us is whether Sellers’ prior
convictions qualify as predicates under a portion of the ACCA
that imposes an enhanced sentence on offenders who have three
prior drug-related convictions punishable by ten years of
(Continued)
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Under the Structured Sentencing Act, sentences are contingent on
two factors established by statute: the class of offense and the
offender’s prior record level. N.C. Gen. Stat. § 15A-1340.13(b).
The sentencing judge must match the class of offense and prior
record level to a statutory table, which provides three possible
sentencing ranges: a mitigated range, a presumptive range, and
an aggravated range. Id. § 15A-1340.17(c).
As we explained, “[t]he presumptive range governs unless
the judge makes written findings that identify specific factors,
separately designated by the [Structured Sentencing] Act, that
permit
Simmons,
a
departure
649
aggravated
F.3d
range
thirty-days’
to
at
only
notice
the
240.
if
of
aggravated
or
“[A]
may
the
its
judge
State
has
intent
to
mitigated
select
provided
prove
range.”
from
the
a
defendant
the
necessary
aggravating factors and a jury has found beyond a reasonable
doubt (or the defendant has pled to) the existence of those
factors.” Id. (internal citations omitted). The sentencing judge
has no control over whether these conditions are fulfilled and
has no discretion to impose a sentence in the aggravated range
absent
their
satisfaction.
Importantly,
the
Structured
imprisonment or more. See 18 U.S.C. § 924(e). Although the CSA
requires a one-year term of imprisonment while the provision of
the ACCA at issue here requires a ten-year term, we conclude
that the analysis is the same.
8
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Sentencing
system;
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Act
does
rather,
not
“it
Pg: 9 of 17
create
mandates
a
discretionary,
specific
guidelines
sentences,
so
no
circumstances exist under the Structured Sentencing Act in which
a North Carolina judge may impose a sentence that exceeds the
top
of
the
Valdovinos,
range
760
set
F.3d
forth
322,
in
326
the
(4th
Act.”
Cir.
United
2014)
States
v.
(emphasis
in
original) (internal quotation marks omitted). To be clear, under
the Structured Sentencing Act, the judge has “no discretion to
impose
a
more
severe
sentence
even
in
extraordinary
cases.”
Simmons, 649 F.3d at 240 n.2 (emphasis added).
Before
Simmons,
we
determined
whether
a
prior
North
Carolina conviction was punishable by a prison term exceeding
one year by looking to “the maximum aggravated sentence that
could be imposed for that crime upon a defendant with the worst
possible criminal history.” United States v. Harp, 406 F.3d 242,
246
(4th
Cir.
2005)
(second
emphasis
added),
overruled
by
Simmons, 649 F.3d 237. However, the Supreme Court’s decision in
Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010), caused us to
reconsider this use of a hypothetical worst-case offender.
In
Carachuri,
the
Court
examined
a
provision
of
the
Immigration and Nationality Act (“INA”) that allows an alien who
“has
not
been
convicted
of
any
aggravated
felony”
to
seek
cancellation of removal. Id. at 566-67; 8 U.S.C. § 1229b(a)(3).
The INA limits “aggravated felon[ies]” in part to certain drug9
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related offenses for which the “maximum term of imprisonment
authorized” is “more than one year.” Carachuri, 560 U.S. at 567
(quoting 18 U.S.C. § 3559(a)). The government argued that the
second
of
Carachuri’s
two
prior
Texas
misdemeanor
drug
possession convictions qualified as an aggravated felony because
Carachuri could have received a two-year prison sentence had he
been prosecuted in federal court instead of state court. The
Supreme Court rejected this approach, explaining that it was
irrelevant whether the conduct underlying the defendant’s prior
conviction hypothetically could have received felony treatment.
The
Court
held
instead
determining
whether
a
felony
whether
he
was
that
the
defendant
was
had
actually
dispositive
committed
convicted
question
an
of
for
aggravated
an
offense
punishable by more than one year in prison. Id. at 581-82.
Applying this rationale in Simmons, we abandoned our use of
a
hypothetical
defendant
with
the
worst
possible
criminal
history and held instead that a prior North Carolina conviction
is punishable by a prison term exceeding one year only if the
particular defendant’s offense of conviction was punishable by a
prison term exceeding one year.
C.
Here, Sellers contends that in the wake of Simmons, our
analysis of whether his prior drug convictions qualify as ACCA
predicates is governed by the maximum possible sentence that he
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have
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received
once
the
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state
court
decided
he
would
benefit from treatment under the YOA. Sellers equates the YOA
with
the
Structured
Sentencing
Act
at
issue
in
Simmons,
asserting that just as the Structured Sentencing Act forbids
North Carolina judges from imposing a sentence in the aggravated
range absent a finding of aggravating factors, the YOA prohibits
South Carolina judges from imposing a sentence greater than six
years in custody absent a finding that the youthful offender
would
not
benefit
from
treatment.
He
argues
that,
like
in
Simmons, the sentencing judge in his case failed to make the
factual
finding
necessary
to
warrant
a
higher
sentence.
Accordingly, he asserts, the YOA imposed a maximum sentence of
six years in custody, and his prior convictions do not qualify
as ACCA predicates.
Sellers’ argument is incorrect for two important reasons.
First, Sellers fails to appreciate the key distinction between
the
Structured
Sentencing
Act
and
the
YOA:
the
Structured
Sentencing Act is a legislative mandate that strictly prohibits
the sentencing judge from imposing a sentence that exceeds the
maximum
fixed
discretionary
with
the
by
the
statutory
alternative
authority
to
that
impose
chart,
provides
an
while
the
increased
the
YOA
sentencing
sentence.
is
a
judge
Second,
Sellers looks to the sentence that was actually imposed, rather
than the sentence he faced; we have repeatedly rejected this
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approach, even after Simmons. See, e.g., United States v. Kerr,
737 F.3d 33, 38 (4th Cir. 2013), cert. denied, 134 S. Ct. 1773
(2014). Simmons and its progeny foreclose Sellers’ contention
that
his
sentences
under
the
YOA
do
not
qualify
as
ACCA
predicates.
1.
In Kerr, for example, the defendant argued that his prior
North Carolina convictions did not qualify as predicate felonies
for a federal sentence enhancement because the sentencing judge
exercised her discretion to impose a sentence in the Structured
Sentencing
Act’s
mitigated
range,
which
provided
a
maximum
possible sentence of 11 months in prison, as opposed to the
presumptive
range,
which
provided
a
term
of
9-14
months
in
prison. Id. at 36. We rejected the argument that the mitigated
range’s 11-month cap meant that Kerr’s prior conviction was not
punishable by more than one year in prison and held instead that
the
presumptive
imprisonment.
mitigating
range, “the
range
Although
factors
maximum
determined
the
warranted
possible
his
sentencing
a
judge
sentence
prison
maximum
that
term
determined
within
the
Kerr
faced
of
that
mitigated
for
his
prior state convictions” was determinative because “the judge
remained free at all times to sentence Kerr to a presumptive
prison term of up to 14 months.” Id. at 38-39 (second emphasis
added).
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Similarly, in Valdovinos, the defendant asserted that his
prior North Carolina conviction did not qualify as a predicate
felony because he was sentenced pursuant to a plea agreement
that
provided
for
a
maximum
sentence
of
12
months
of
imprisonment. 760 F.3d at 324-25. Despite the language of the
plea agreement, we held that the prior conviction was punishable
by
a
prison
term
exceeding
one
year
because
the
Structured
Sentencing Act authorized a maximum sentence of 16 months of
imprisonment
for
the
conviction.
We
emphasized
“[t]hat
the
sentence ultimately imposed pursuant to [Valdovinos’] plea deal
was 10 to 12 months’ imprisonment [was] irrelevant,” because
whether a prior conviction qualifies as a sentencing predicate
depends on the maximum sentence permitted, not the sentence a
defendant actually received. Id. at 327 (citing United States v.
Edmonds, 679 F.3d 169, 176 (4th Cir. 2012), vacated on other
grounds, 133 S. Ct. 376, aff’d on remand, 700 F.3d 146 (4th Cir.
2012)).
We
rejected
Valdovinos’
contention
that
the
plea
agreement established his maximum potential punishment because,
unlike the Structured Sentencing Act, “under which a judge may
never impose a sentence that exceeds the top of the range set
forth in the Act, . . . the sentencing judge remains free to
reject the [plea] agreement.” Id. at 328 (second emphasis added)
(internal citation and quotation marks omitted).
13
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Finally, in United States v. Bercian-Flores, the defendant
argued that a prior federal conviction with a statutory maximum
sentence of five years in prison did not qualify as a predicate
felony
because
the
mandatory
Sentencing
Guidelines
range
in
effect at the time of his sentencing was zero to six months of
imprisonment.
Sellers,
786
F.3d
309,
Bercian-Flores
310
(4th
analogized
Cir.
to
2015).
the
Much
North
like
Carolina
Structured Sentencing Act, asserting that just as the sentencing
judge in Simmons failed to find the existence of aggravating
factors and thus could not impose a sentence in the aggravated
range, his sentencing judge failed to find facts that warranted
an upward departure and therefore could not impose a sentence
outside
of
the
Guidelines
range.
We
rejected
Bercian-Flores’
argument and held that the statutory maximum sentence set by the
applicable
legislative
guidelines
range
conviction
–
body
is
constitutes
a
–
not
the
determinative
predicate
top
of
felony.
sentence
whether
As
we
a
in
a
prior
explained,
“Simmons did not change the fact that the cornerstone of our
predicate-felony
conviction.
The
analysis
must
be
the
qualification
of
a
defendant’s
prior
offense
conviction
as
of
a
sentencing predicate does not depend on the sentence a defendant
actually received but on the maximum sentence permitted for his
offense
of
conviction.”
Id.
at
315-16
(internal
alterations,
citations, and quotation marks omitted). Our conclusion hinged
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on the fact that even under the mandatory Sentencing Guidelines
in effect at the time Bercian-Flores was sentenced for his prior
conviction,
“the
district
court
had
discretion
to
sentence
Bercian-Flores up to the statutory maximum of five years” in
prison. Id. at 315 (emphasis added).
2.
These
cases
set
principles
that
conviction
qualifies
forth
govern
as
two
our
a
important
analysis
predicate
of
for
and
interrelated
whether
a
federal
a
prior
sentence
enhancement after Simmons. The first is that “the cornerstone of
our predicate-felony analysis” is the maximum sentence permitted
by the defendant’s offense of conviction, not the sentence the
defendant actually received. Id. at 315-16 (citing Valdovinos,
760 F.3d at 327). The second is that “the salient question to be
asked after
Simmons is
whether
sentence
particular
defendant”
a
imprisonment.
Id.
at
315
the
to
(emphasis
sentencing
a
judge
qualifying
in
original)
could
term
of
(citing
Valdovinos, 760 F.3d 322; Kerr, 737 F.3d 33).
The application of these principles requires us to reject
Sellers’ argument and reaffirm our holding in Williams. First,
Simmons and its progeny reinforce, rather than reject, Williams’
directive that we “consider the statutory penalty for the prior
conviction, not the sentence the defendant in fact received.”
Williams, 508 F.3d at 728 (emphasis in original). In addition,
15
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we
Doc: 39
conclude
Sellers
Filed: 11/18/2015
that
to
the
more
violations
of
sentencing
than
S.C.
Pg: 16 of 17
ten
Code
judge
years
Ann.
in
could
prison
have
for
§ 44-53-375(B).
sentenced
his
When
three
Sellers
appeared before the state court to receive his sentence, the YOA
provided the sentencing judge with complete discretion to find
that
Sellers
would
not
derive
benefit
from
treatment
and
to
sentence him to a term of imprisonment that exceeded ten years.
See Williams, 508 F.3d at 727; Ballard v. State, 187 S.E.2d 224,
226 (S.C. 1972) (holding that the YOA gives the trial judge “the
right, in his discretion, to impose a sentence under [any of
the] subsections” in the Act without requiring that “specific
factual findings be made a part of the record”); S.C. Code Ann.
§
44-53-375(B)
imprisonment
subsequent
Flores,
(providing
for
first
offenses).
the
fact
offense
As
that
maximum
in
the
term
and
Kerr,
of
enhanced
Valdovinos,
sentencing
judge
15
years
maximums
and
of
for
Bercian-
retained
the
discretion at all times to sentence Sellers to the statutory
maximum penalty controls the outcome of this case.
Consistent with Williams, we therefore hold that a prior
South Carolina conviction for which a defendant received a YOA
sentence of an indefinite period of confinement not to exceed
six
years
enhancement
qualifying
qualifies
where
term
of
as
the
a
predicate
statute
imprisonment.
16
of
for
a
federal
conviction
Accordingly,
sentence
prescribes
Sellers’
a
three
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South
Doc: 39
Filed: 11/18/2015
Carolina
§ 44-53-375(B)
convictions
are
Pg: 17 of 17
for
offenses
violations
“for
which
of
a
S.C.
Code
maximum
Ann.
term
of
imprisonment of ten years or more is prescribed by law,” 18
U.S.C.
§ 924(e)(2)(A)(ii),
triggering
the
ACCA’s
sentence
enhancement.
III.
For
prior
the
foregoing
South
Carolina
predicates.
The
reasons,
drug
district
we
hold
that
convictions
court
therefore
Sellers’
qualify
did
not
three
as
err
ACCA
in
sentencing Sellers as an armed career criminal, and the judgment
of the district court is affirmed.
AFFIRMED
17
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