USA v. Sean Widmer
OPINION and JUDGMENT filed : The district court s imposition of a special condition of supervised release restricting Widmer s association with minors as part of his sentence for possession of child pornography is AFFIRMED. Decision for publication. Ralph B. Guy, Jr., Eric L. Clay (AUTHORING), and Helene N. White (DISSENTING), Circuit Judges.
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 15a0081p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Appeal from the United States District Court
for the Eastern District of Tennessee at Knoxville.
No. 3:10-cr-00078-1—Thomas A. Varlan, Chief District Judge.
Argued: September 30, 2014
Decided and Filed: May 6, 2015
Before: GUY, CLAY and WHITE, Circuit Judges.
ARGUED: Dana C. Hansen Chavis, FEDERAL DEFENDER SERVICES OF EASTERN
TENNESSEE, INC., Knoxville, Tennessee, for Appellant. Debra A. Breneman, UNITED
STATES ATTORNEY’S OFFICE, Knoxville, Tennessee, for Appellee. ON BRIEF: Dana C.
Hansen Chavis, FEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE, INC.,
Knoxville, Tennessee, for Appellant. Frank M. Dale, Jr., UNITED STATES ATTORNEY’S
OFFICE, Knoxville, Tennessee, for Appellee.
CLAY, J., delivered the opinion of the court in which GUY, J., joined, and WHITE, J.,
joined in part. WHITE, J. (pg. 13), delivered a separate opinion concurring in part and
dissenting in part.
United States v. Widmer
CLAY, Circuit Judge. Defendant Sean Widmer appeals from a final amended judgment
entered on September 19, 2013 by the district court imposing on Widmer special conditions of
supervised release upon his conviction for receiving child pornography in violation of 18 U.S.C.
§§ 2252A(a)(2) and (b)(1). Widmer challenges one of these special conditions of supervised
release, which prohibits him from associating with minors without first receiving written
authorization from his probation officer.
For the following reasons, we AFFIRM the district court’s imposition of the special
condition of supervised release restricting Widmer’s association with minors.
On February 22, 2011, Widmer pled guilty to receipt of child pornography in violation of
18 U.S.C. § 2252A(a)(2) and (b)(1) for downloading seven still images and 134 videos depicting
“identifiable child victims, prepubescent children in sexual contact with adults and other
children, and sadistic and masochistic conduct.” United States v. Widmer, 511 F. App’x 506,
508 (6th Cir. 2013). Under the Federal Sentencing Guidelines, each video is deemed equivalent
to seventy-five images. Widmer is therefore culpable for possessing 10,057 images. The district
court sentenced Widmer to ninety-seven months of imprisonment and five years of supervised
His supervised release included special “sex offender” conditions, including sex-
offender mental-health treatment, a post-release psychosexual evaluation, probation-officer
compliance searches, restrictions on his use of computers, and restrictions on his association with
In a previous appeal before this Court, United States v. Widmer, 511 F. App’x 506 (6th
Cir. 2013) (“Widmer I”), Widmer challenged both his sentence and special conditions of
supervised release. In Widmer I, we affirmed Widmer’s sentence, and vacated and remanded the
special conditions of his supervised release, finding that the district court erred by failing to
provide an explanation supporting the application of those conditions. We noted that “[a]lthough
United States v. Widmer
we sometimes affirm special conditions of supervised release on a silent record,” we could not
do so in Widmer’s case because the district court “lack[ed] an obvious rationale” for imposing
Widmer’s special conditions, including the association restriction at issue in Widmer’s current
appeal. Id. at 512-13. We ultimately remanded the case to the district court “for a fuller
explanation of its reasons for imposing” the special conditions of supervised release. Id. at 513.
On remand, the district court received additional briefing from the parties, and Widmer was
given an opportunity to allocute. At a September 13, 2013 re-sentencing hearing, the district
court imposed most of the same conditions of supervised release. Widmer’s current appeal
challenges only the condition limiting his ability to associate with minors, including his daughter
(hereinafter “the association restriction”). This condition states in full:
The defendant shall not associate and/or be alone with children under 18 years of
age, nor shall he be at any residence where children under the age of 18 are
residing, without the prior written approval of the probation officer. In addition,
the defendant shall not visit, frequent, or remain about any place that is primarily
associated with children under the age of 18, or at which children under the age of
18 normally congregate without the prior written approval of the probation
(R. 64, Amended Judgment, Page ID # 775.)
A. Standard of Review
We review special conditions imposed during supervised release for abuse of discretion.
United States v. Brogdon, 503 F.3d 555, 563 (6th Cir. 2007). This review requires us to consider
both the procedural and substantive reasonableness of the special condition at issue in this
appeal. United States v. Carter, 463 F.3d 526, 528-29 (6th Cir. 2006).
First, procedural reasonableness requires the district court to state “its rationale for
mandating special conditions of supervised release” in open court at the time of sentencing.
United States v. Kingsley, 241 F.3d 828, 836 (6th Cir. 2001).
Second, the substantive reasonableness inquiry requires us to determine whether the
condition of supervised release:
United States v. Widmer
is reasonably related to specified sentencing factors, namely the nature and
circumstances of the offense and the history and characteristics of the
defendant, and the need to afford adequate deterrence, to protect the public
from further crimes of the defendant, and to provide the defendant with
needed educational or vocational training, medical care, or other
correctional treatment in the most effective manner;
involves no greater deprivation of liberty than is reasonably necessary to
achieve these goals; and
is consistent with any pertinent policy statements issued by the Sentencing
United States v. Zobel, 696 F.3d 558, 573 (6th Cir. 2012). “[W]here a condition of supervised
release is reasonably related to the dual goals of probation, the rehabilitation of the defendant and
the protection of the public, it must be upheld.” United States v. Ritter, 118 F.3d 502, 504 (6th
Cir. 1997). Special conditions of supervised release that “implicate fundamental rights such as . .
. freedom of association are subject to careful review, but if primarily designed to meet the ends
of rehabilitation and protection of the public, they are generally upheld.”
Id.; see Zobel,
696 F.3d at 574 (upholding a “no contact with minors condition” where the condition was
reasonably related to the protection of the public in a case involving the coercion of a minor to
engage in sexual activity); see also United States v. Wright, 529 F. App’x 553, 556 (6th Cir.
2013) (upholding a special condition limiting a defendant’s contact with minors other than his
own children where the defendant was convicted of possessing and transporting child
In light of the district court’s “front-row seat” during trial, reviewing courts tend to be
deferential to a district court’s imposition of supervised release conditions. United States v.
Shultz, 733 F.3d 616, 619 (6th Cir. 2013). However, to satisfy procedural reasonableness, the
district court is required to state its rationale for imposing supervised release conditions. This
Court previously vacated the special conditions of Widmer’s supervised release and remanded
the case to the district court because the district court had failed to provide sufficient justification
for imposing these conditions. Widmer I, 511 F. App’x at 513.
United States v. Widmer
On remand, the district court acknowledged its “obligation to state in open court the
reasons for imposition of a particular sentence, including the rationale for special conditions of
supervised release.” (R. 66, Hearing Tr., Page ID # 793.) The district court then provided the
following explanation for the association restriction at issue in this appeal, thereby satisfying the
procedural reasonableness requirement:
The Court finds this condition is reasonably related to the history and
characteristics of the Defendant and the nature and circumstances of the offense.
Again, the Defendant has been convicted of receiving child pornography, which,
by definition, includes a sexual interest in minor children. And as the
Government notes, the materials he possessed included prepubescent children in
sexual contact with other adults and other children. The Defendant argues or
points out that he has not had any contact offenses or used the internet to entice a
minor. While that may be true, this does not negate what he actually did, which is
receive child pornography including sadistic images. Moreover, the results of his
previous evaluations, according to this court’s review of the record, do indicat[e]
some sexual interest in children, and at least one doctor has opined that the
Defendant could or may sexually act out in the future.
(Id. at 798.)
Widmer challenges the district court’s imposition of the restriction against associating
with minors, arguing that the condition is not justified by the record or the district court’s
explanation, does not directly advance the goals of rehabilitation and public protection, and
“constitutes an unconstitutional deprivation of Widmer’s fundamental rights of parenthood and
to associate with his family.” Defendant’s Br. at 3. This Circuit has recognized that special
conditions affecting fundamental rights require “careful review,” Ritter 118 F.3d at 504, and that
“the Constitution protects a parent’s right to raise his children.” Schultz, 733 F.3d at 623. We
therefore first consider the challenged condition as it pertains to Widmer’s interactions with
minors other than his daughter, and then consider separately the application of the condition to
Widmer’s interactions with his daughter.
United States v. Widmer
Association Restriction As It Relates to Minors Other Than
Widmer challenges the association restriction generally on the grounds that the condition
(1) is not justified by the record or the district court’s explanation, and (2) does not advance the
goals of rehabilitation or protection of the public. Both of these challenges are without merit.
Widmer first argues that the district court’s explanation was insufficiently individualized
and simply restated the elements of his crime. To support this argument, Widmer cites to this
Court’s decisions in United States v. Doyle, 711 F.3d 729 (6th Cir. 2013) and United States v.
Inman, 666 F.3d 1001 (6th Cir. 2012) for the proposition that special conditions must “relate to
the particular circumstances of the case before the court.” Defendant’s Br. at 25. While it is
indeed true that special conditions “must be tailored to the specific case” at hand, these two cases
fail to support Widmer’s argument. Inman, 666 F.3d at 1005. In both Doyle and Inman, we
vacated special conditions of supervised release where the trial courts, unlike the district court in
this case, provided no explanation justifying the application of special conditions of supervised
release. Doyle, 711 F.3d at 733 (holding that the sentencing court erred by providing no
explanation for the imposition of association restrictions and a pornography ban on a defendant
who failed to register as a sex offender); Inman, 666 F.3d at 1005 (holding that the district court
erred by failing to provide any explanation for imposing a number of special conditions,
including a lifetime ban on alcohol, on a defendant who had been convicted of possessing child
In the instant case, on the other hand, the district court on remand provided a
particularized explanation for the imposition of the restriction on Widmer’s association with
The district court’s explanation addressed both the nature of the crime of child
pornography possession in general and Widmer’s behavior in possessing child pornography in
particular. See Zobel, 696 F.3d at 573 (explaining that to satisfy substantive reasonableness a
special condition must be reasonably related to the “nature and circumstances of the offense and
the history and characteristics of the defendant”). The district court emphasized that Widmer
possessed sadistic images, and that “the materials he possessed included prepubescent children in
sexual contact with other adults.” (R. 66, Hearing Tr., Page ID # 798.) In Shultz, this Court
upheld a nearly identical association restriction imposed on a defendant who pled guilty to
United States v. Widmer
receiving and possessing child pornography. The Shultz court found that it was proper for the
district court to consider the content of particular images, specifically “files depict[ing] adults
having sexual intercourse with children” and depicting sadism, when assessing the likelihood
that the defendant would pose a risk to children. Shultz, 733 F.3d at 620. The district court in
this case considered the same factors in imposing Widmer’s association restriction.
In addition to discussing the nature of Widmer’s offense, the district court’s explanation
further pointed to relevant personal characteristics of Widmer, namely that Widmer had “some
sexual interest in children” and that “at least one doctor has opined that [Widmer] could or may
sexually act out in the future.” (R. 66, Hearing Tr., Page ID # 798.) In his appellate briefing,
Widmer points to expert testimony suggesting that he poses a relatively low risk of harming
children. The expert assessment upon which Widmer seeks to rely was previously found by the
district court to be “highly subjective,” leading the district court to order the additional
assessment later referenced in the district court’s explanation. Widmer I, 511 F. App’x at 508.
While Widmer would have us place greater weight on the opinion of his preferred expert, the
district court was undoubtedly within its discretion to assign greater significance to the other
expert’s findings. See In re Cleveland Tankers, Inc., 67 F.3d 1200, 1205 (6th Cir. 1995)
(“[C]redibility judgments are particularly the province of the district court, with only a narrow
scope for appellate intervention when a district court has relied on testimony that simply cannot
Widmer next argues that the association restriction cannot be justified as advancing the
goals of public protection and rehabilitation because the restriction does not relate to his previous
conduct, which was possession of child pornography rather than child abuse.
considered a comparable argument in Shultz. The defendant in Shultz contended that the act of
possessing child pornography is sufficiently removed from the act of physically harming a child
as to render an association restriction unreasonable. Shultz, 733 F.3d at 621. Like Widmer, the
defendant in Shultz emphasized the fact that he had never previously been accused of molestation
or child abuse. The Shultz court did not find this argument persuasive, and neither do we. A
defendant convicted of possessing child pornography need not have previously assaulted a minor
to justify the imposition of a restriction on the defendant’s association with minors. Indeed, “a
United States v. Widmer
sex offender does not get one free pass at child molestation before prophylactic rules of
supervised release designed to protect children become appropriate.” Id. at 621; see also United
States v. Wright, 529 F. App’x 553 (6th Cir. 2013) (upholding a condition forbidding a defendant
from having contact with minors where the defendant was convicted of possessing child
pornography); United States v. Lewis, 565 F. App’x 490, 497 (6th Cir. 2012) (upholding a
condition limiting a defendant’s contact with minors where the defendant had been convicted of
possession of child pornography and failure to register as a sex offender, but had no history of
violence or child abuse).
The district court did not abuse its discretion by imposing a restriction on Widmer’s
association with minors based on evidence in the record regarding Widmer’s sexual interest in
children, risk of “sexually act[ing] out in the future,” possession of depictions of adults engaged
in sexual activity with children, and possession of sadistic images involving children. (R. 66,
Hearing Tr., Page ID # 798.) To the contrary, taking into account Widmer’s behavior, history,
and personal characteristics, as well as the goals of rehabilitation and protection of the public, the
restriction is perfectly appropriate. See Shultz, 733 F.3d at 621; Zobel, 696 F.3d at 574 (finding
that a special condition restricting a defendant’s access to minors was “reasonably related to the
protection of the public and therefore must be upheld” (internal quotation marks omitted)).
Association Restriction As It Relates to Widmer’s Daughter
Widmer argues that applying the association restriction to his interactions with his own
child violates his fundamental right of familial association. “[E]ven individual fundamental
rights safeguarded by the United States Constitution may be denied or limited by judicially
exacted special conditions of supervised release, as long as those restrictions are directly related
to advancing the individual’s rehabilitation and preventing recidivism.” United States v. May,
568 F.3d 597, 608 (6th Cir. 2009) (internal quotation marks omitted). Special conditions that
implicate fundamental rights are “generally upheld” if they are “primarily designed to meet the
ends of rehabilitation and protection of the public.” Ritter, 118 F.3d at 504. Such conditions are
“subject to careful review.” Id.
The United States Supreme Court has identified “family life, and the upbringing of
children” as “among associational rights this Court has ranked as of basic importance in our
United States v. Widmer
society, rights sheltered by the Fourteenth Amendment against the State’s unwarranted
usurpation, disregard, or disrespect.” M.L.B. v. S.L.J., 519 U.S. 102, 116 (1996) (internal
citations and quotation marks omitted); see also Lassiter v. Dept. of Soc. Servs. of Durham Cnty.,
N.C., 452 U.S. 18, 27 (1981) (“[T]he companionship, care, custody and management of [one’s]
children is an important interest that undeniably warrants deference and, absent a powerful
countervailing interest, protection.” (internal quotation marks omitted)).
This Circuit has
recognized this right as well, noting that “[t]he Constitution protects a parent’s right to raise his
children.” Shultz, 733 F.3d at 623; see also Eidson v. State of Tenn. Dep’t of Children’s Servs.,
510 F.3d 631, 635 (6th Cir. 2007) (“[P]arents have a fundamental liberty interest in the custody
of their children.”). However, these fundamental parental rights are not absolute:
Although it has recognized this abstract fundamental liberty interest in family
integrity . . . , the Supreme Court has yet to articulate the parameters of this right.
Nonetheless, what is clear is that the right to family integrity, while critically
important, is neither absolute nor unqualified. The right is limited by an equal[ly]
compelling governmental interest in the protection of children, particularly where
the children need to be protected from their own parents. Governmental entities
have a traditional and transcendent interest in protecting children within their
jurisdiction from abuse. Thus, although parents enjoy a constitutionally protected
interest in their family integrity, this interest is counterbalanced by the compelling
governmental interest in the protection of minor children, particularly in
circumstances where the protection is necessary as against the parents themselves.
Kottmyer v. Maas, 436 F.3d 684, 690 (6th Cir. 2006) (internal citations and quotation marks
Special conditions of supervised release that implicate parental rights are considered
more intrusive and require explicit consideration by the sentencing court. See Wright, 529 F.
App’x at 556. In Wright, this Court construed an association restriction as inapplicable to a
defendant’s future children in light of the intrusion that such a restriction would cause, where the
district court had explicitly indicated that the restriction was not intended to affect the
defendant’s ability to marry or have children. Id. Likewise, in Doyle, this Court vacated a
special condition that would bar a defendant who had been convicted of failing to register as a
sex offender from having contact with his own children. 711 F.3d at 734. The Doyle court
found that the district court erred procedurally by failing to provide a rationale for the special
United States v. Widmer
condition. Id. Absent such explanation, the Court found that the record did not justify applying
the condition to the defendant’s four children. Id at 734-35.
In this case, the district court explicitly addressed the application of the association
restriction to Widmer’s daughter.
After providing its explanation—which highlighted the
sadistic content of the images possessed by Widmer, the images’ depictions of prepubescent
children in sexual contact with adults, Widmer’s sexual interest in children, and a doctor’s
opinion that Widmer may “sexually act out in the future,”—the district court confirmed that the
association restriction would apply to Widmer’s daughter. (R. 66, Hearing Tr., Page ID # 79899.) The district court stated that, “to the extent this condition would apply to the Defendant
having contact or associating with his minor child, the Court is cognizant of that argument on
Defendant’s part; but  finds it to be . . . an unfortunate consequence of the criminal activity in
this case.” (Id. at 799.) Although Widmer asserts that the association restriction is not narrowly
tailored because it affects his association with his own child, it is clear that the restriction is
tailored for the precise purpose of protecting Widmer’s daughter.
It is certainly reasonable for the court to be concerned about contact between children and
adults, even parents, who have been convicted of crimes that entail a sexual interest in children.
Undoubtedly, the court’s interest in protecting minors from sexual predation extends to the
children of sexual predators. In fact, such children may be most in need of the courts’ protection.
As we have already acknowledged, there is a “compelling governmental interest in the protection
of minor children, particularly in circumstances where the protection is necessary as against the
parents themselves.” Kottmyer, 436 F.3d at 690 (emphasis added). In the context of determining
the necessity of special conditions of supervised release, trial courts are tasked with considering
the need “to protect the public from further crimes of the defendant,” Zobel, 696 F.3d at 573,
including the need for “[conditions] of supervised release designed to protect children.” Shultz,
733 F.3d at 621. Trial courts are afforded considerable deference in such sentencing decisions,
as they are best suited to evaluate the danger that a defendant poses to children. Id. at 619-20;
see United States v. Poynter, 495 F.3d 349, 351-52 (6th Cir. 2007) (“[W]e should acknowledge
the trial courts’ comparative advantages—its ring-side perspective on the sentencing hearing and
United States v. Widmer
its experience over time in sentencing other individuals—and give considerable deference to
their sentencing decisions.”).
Courts have particular cause for concern where a defendant has previously engaged in or
benefitted from the abuse of children. While Widmer seeks to portray his crime of conviction as
a passive crime that did not endanger children, he admitted to having masturbated to images of
children being sexually abused. Widmer I, 511 F. App’x at 508. There is nothing passive about
his disregard for the welfare of those children or his willingness to take pleasure in their abuse.
In light of the district court’s broad sentencing discretion and interest in the protection of
children, it is undeniable that the district court was within its discretion to address its concerns
about the safety of Widmer’s minor daughter.
The district court provided an adequate justification for imposing the association
restriction, explaining the risks posed by Widmer to children and explicitly addressing the
necessity of applying the association restriction to Widmer’s own child. Considering the nature
of Widmer’s offense, his personal characteristics and proclivities, the court’s interests of
rehabilitation and protection of minors—including Widmer’s own daughter—the district court
was within its discretion to impose the association restriction. See Ritter, 118 F.3d at 504 (“[I]f
primarily designed to meet the ends of rehabilitation and protection of the public, [special
conditions implicating fundamental rights] are generally upheld.”).
The duration of this restriction is limited to the five-year period of supervised release
imposed by the district court, and Widmer is not without recourse if he believes that future
circumstances warrant reevaluation of this special condition. Widmer may petition the district
court to “modify [or] reduce . . . the conditions of [his] supervised release,” and the district court
has the discretion to do so “at any time prior to the expiration or termination of the term of
supervised release,” in accordance with 18 U.S.C. § 3583(e)(2).
Widmer further argues that a constitutionally infirm special condition of supervised
release cannot be cured by allowing a probation officer to limit the condition’s application.
Because we find that the association restriction is not “constitutionally infirm” as Widmer
claims, we need not decide whether any alleged constitutional infirmity could be cured by
United States v. Widmer
empowering a probation officer to limit the effect of the challenged condition. Where no
constitutional infirmity exists, this question is irrelevant.1
The district court’s imposition of a special condition of supervised release restricting
Widmer’s association with minors as part of Widmer’s sentence for possession of child
pornography is AFFIRMED.
Widmer’s argument implicates the broader issue of whether granting probation officers discretion to
determine the application of special conditions of supervised release constitutes an impermissible delegation of a
judge’s Article III authority. This Court has yet to consider this issue and our sister circuits have reached divergent
conclusions. See Shultz, 733 F.3d at 621 (acknowledging circuit split). Some circuits have concluded that similar
special conditions violate Article III. See, e.g., United States v. Voelker, 489 F.3d 139, 154-55 (3d Cir. 2007);
United States v. Kieffer, 257 F. App’x 378, 381 (2d Cir. 2007) (summary order). Meanwhile, other circuits have
found that such conditions are not unconstitutional. See, e.g., United States v. Rodriguez, 558 F.3d 408, 416 (5th
Cir. 2009); United States v. Mitnick, 145 F.3d 1342, 1342 n. 1 (9th Cir. 1998) (unpublished memorandum opinion).
This court has not yet addressed this constitutional question, and we decline to do so at this juncture. See Firestone
v. Galbreath, 976 F.2d 279, 285 (6th Cir. 1992) (“If there is one doctrine more deeply rooted than any other in the
process of constitutional adjudication, it is that we ought not to pass on questions of constitutionality . . . unless such
adjudication is unavoidable.”).
United States v. Widmer
CONCURRING IN PART AND DISSENTING IN PART
HELENE N. WHITE, Circuit Judge, concurring in part and dissenting in part. I concur
except with regard to the association restriction as it relates to Widmer’s daughter. I do not agree
that the district court “explicitly address[ed] the necessity of applying the association restriction
to Widmer’s own child.” Maj Op. 11. Rather, the district court merely remarked that the
restriction was “an unfortunate consequence of the criminal activity in this case.” Clearly, some
restriction on Widmer’s contact with his daughter is necessary and appropriate; however, the
district court should have considered whether less-restrictive conditions, such as supervised
visitation, sufficiently further probation’s dual goals of rehabilitation and protection of the public
while also assuring some exercise of the parent–child associational rights involved. Absent an
adequate explanation that an almost-complete ban on Widmer’s association with his daughter is
necessary to rehabilitate Widmer and protect the public (including his daughter), I again
conclude that, “because Widmer never solicited or physically harmed a child, the record lacks an
obvious rationale for imposing [the no association] restriction.”1 Widmer I, 511 F. App’x 506,
513 (6th Cir. 2013). Thus, the restriction fails careful review because it involves a greater
deprivation of liberty than reasonably necessary to achieve the probationary goals of
rehabilitation and protection of the public. United States v. Ritter, 118 F.3d 502, 504 (6th Cir.
Widmer has no prior convictions, and pending sentencing, the court allowed him to visit with his
daughter. On first appeal, this court found “no error in the [district] court’s characterization of Widmer’s conduct,
let alone in its evaluation of the evidence to find him sexually interested in children.” Widmer I, 511 F. App’x at
512. And we were aware that “Widmer downloaded images of minor children engaging in sexual activity with adult
males,” id., and that some of the materials portrayed “sadistic and masochistic conduct,” id. at 508. We also noted
that the district court, in its order overruling Widmer’s PSR objections, “repeatedly tied the challenged conditions to
the crime of child pornography.” Id. at 512. Nevertheless, we impliedly concluded that those facts were insufficient
to justify the no-association special condition. Id. at 513.
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