Smith v. United States of America
Filing
96
ORDER granting in part and denying in part 86 --motion to dismiss; Doc. 21 --REPORT AND RECOMMENDATION remains adopted; denying 83 --amended motion to vacate; denying a certificate of appealability; denying leave to appeal in forma pauperis; directing the clerk to ENTER JUDGMENT for the United States and to CLOSE the case. Signed by Judge Steven D. Merryday on 11/2/2018. (BK)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
UNITED STATES OF AMERICA
v.
CASE NO. 8:05-cr-527-T-23MAP
8:08-cv-1086-T-23AEP
BRYAN TIMOTHYLEENARD SMITH,
/
ORDER
Bryan Timothyleenard Smith moves (Doc. 83) under 28 U.S.C. § 2255 to
vacate his sentence of 140 years’ imprisonment. The United States responds
(Doc. 88). Also, the United States moves (Doc. 86) to dismiss-in-part Smith’s claims
as untimely, Smith responds (Doc. 92), the United States replies (Doc. 94), and
Smith files (Doc. 95) a notice of supplemental authority.
Background
After an extended crime spree, Smith and his step-brother Jamail Hogan were
charged with a carjacking and an armed robbery on November 26, 2005; the armed
robbery of two convenience stores on November 27, 2005; and the attempted armed
robbery of Bill’s Market on December 2, 2005.
Smith and Hogan were tried separately. Smith waived opening argument and
presented his defense through cross-examination of the government’s witnesses.
Although claiming to law enforcement that he drove Hogan and another man to the
scene of the robberies, Smith denied knowing that the robberies occurred. Smith’s
claim of “another man” was unsupported by the evidence.
The jury acquitted Smith of the charges relating to the November 26, 2005
carjacking and robbery but convicted Smith on each charge relating to the robberies
on November 27, 2005, and December 2, 2005: conspiracy to obstruct commerce by
robbery in violation of the Hobbs Act, 18 U.S.C. § 1951 (Count One); Hobbs Act
robbery in violation of 18 U.S.C. §§ 2 and 1951 (Counts Six and Nine); attempted
Hobbs Act robbery of Bill’s Market in violation of 18 U.S.C. §§ 2 and 1951 (Count
Eleven); discharging a firearm in violation of 18 U.S.C. §§ 924(c)(1)(A),
924(c)(1)(A)(iii), and 924(c)(2) (Counts Seven and Twelve); and brandishing a
firearm in violation of 18 U.S.C. §§ 924(c)(1)(A), 924(c)(1)(A)(ii), and 924(c)(2)
(Count Ten).
Because the store manager died after a gunshot wound received during the
attempted robbery at Bill’s Market, Smith’s offense level was 43, yielding an advisory
guidelines range of life imprisonment. Smith was sentenced to the statutory
maximum of 240 months’ imprisonment on each of the four Hobbs Act offenses, the
statutory minimum of 120 months on the first Section 924(c) offense, and the
statutory minimum of 300 months on the second and third Section 924(c) offenses,
all terms consecutive, for a total of 1,680 months (140 years). The Eleventh Circuit
affirmed Smith’s convictions and sentences.
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Procedural history
Smith’s post-conviction claims encompass three Section 2255 motions: an
initial motion to vacate, a successive motion to vacate, and an amended motion to
vacate. Although only the amended motion to vacate (Doc. 83) remains, the
amended motion incorporates unresolved claims from the initial and successive
motions. A more detailed history follows.
On June 4, 2008, Smith timely moved (Doc. 1) with the assistance of counsel
to vacate his sentence. A July 20, 2011 order (Doc. 12) dismisses several claims and
refers the remaining two claims to the magistrate judge for an evidentiary hearing.
After hearing evidence (Doc. 15) and receiving supplemental briefs (Doc. 16,
Doc. 18), the magistrate judge entered (Doc. 21) a report recommending the denial of
the motion to vacate. Neither side filed an objection. A March 30, 2012 order
(Doc. 22) adopts the report and recommendation, denies the motion to vacate, and
directs entry of judgment in favor of the United States.
Not notified by his counsel that judgment was entered, Smith filed (Doc. 25) a
pro se motion to compel a decision on his claims. A July 5, 2012 order (Doc. 26)
denies the motion. But after additional filings revealed that counsel abandoned
Smith, a September 25, 2013 order (Doc. 54) vacates the judgment, re-opens the case,
and allows both sides to file objections to the report and recommendation. Also, the
order permits Smith to move under Rule 60(b), Federal Rules of Civil Procedure, to
reconsider one of the several claims dismissed before the evidentiary hearing.
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Accordingly, Smith’s counsel filed objections (Doc. 55) and a Rule 60(b) motion
(Doc. 56). The United States responded (Doc. 59, Doc. 60). Not satisfied with
counsel’s arguments, Smith filed (Doc. 63) a pro se motion to amend.
Before Smith’s initial motion to vacate was resolved, the Federal Defender on
Smith’s behalf filed with the Eleventh Circuit an application for leave to file a second
or successive Section 2255 motion to allege a claim under Johnson v. United States, 135
S. Ct. 2551 (2015). While the application was pending, the Federal Defender filed in
district court a “placeholder” motion to vacate, which was docketed as a new case
(Case No. 8:16-cv-1772-T-23AEP). On July 6, 2016, the Eleventh Circuit granted-inpart (Doc. 72) Smith’s application for leave to file a second or successive
Section 2255 motion.
A September 30, 2016 order (Doc. 73) explains that because Smith’s initial
motion to vacate pends, Smith required no permission to file a second or successive
motion and Smith’s Johnson claim is not subject to the rules governing a second or
successive motion. The order consolidates Smith’s two Section 2255 cases, denies as
moot all pending motions, permits Smith’s counsel to withdraw, appoints new
counsel, and directs counsel to proceed in his discretion.
On April 28, 2017, Smith filed (Doc. 83) an amended motion to vacate. The
amended motion incorporates claims alleged in Smith’s initial motion to vacate
(Doc. 1) and the Federal Defender’s Johnson claim (Doc. 74). In addition, the
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amended motion to vacate raises new claims. The initial claims, the Johnson claim,
and the new claims are addressed in turn.
Initial claims
1.
Failure to file a motion to suppress
Smith argues (Doc. 1 at 13–15) that counsel performed deficiently by failing to
investigate the circumstances surrounding Smith’s confession and by failing to move
to suppress the confession. The parties agree (Doc. 83 at 6, Doc. 88 at 11) that this
claim is governed by the magistrate judge’s report and recommendation (Doc. 12),
Smith’s objections (Doc. 55), and the United States’ response (Doc. 59).
To demonstrate that counsel was constitutionally ineffective, Smith must show
(1) that counsel’s representation fell below an objective standard of reasonableness
and (2) that counsel’s deficient performance prejudiced the movant. Strickland v.
Washington, 466 U.S. 668, 687 (1984). “[T]here is no reason for a court deciding an
ineffective assistance claim . . . to address both components of the inquiry if the
defendant makes an insufficient showing on one.” Strickland, 466 U.S. at 697.
“Counsel has a constitutional, independent duty to investigate and prepare a
defense strategy.” Williams v. Allen, 598 F.3d 778, 792 (11th Cir. 2010). “[A]
particular decision not to investigate must be directly assessed for reasonableness in
all the circumstances, applying a heavy measure of deference to counsel’s
judgments.” Williams, 598 F.3d at 793 (internal quotation marks omitted). “[A]
court must consider not only the quantum of evidence already known to counsel, but
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also whether the known evidence would lead a reasonable attorney to investigate
further.” Williams, 598 F.3d at 793 (internal quotation marks omitted).
Because a court “weigh[s] heavily the information provided by the defendant,”
Allen v. Sec’y, Fla. Dep’t of Corr., 611 F.3d 740, 752 (11th Cir. 2010), the July 20, 2011
order (Doc. 12 at 10–11) submits Smith’s claim to an evidentiary hearing to
determine the facts, if any, Smith told his trial counsel about his confession. The
magistrate judge heard testimony from four witnesses: Smith, Smith’s mother,
Smith’s trial counsel, and Detective Edwin Moran of the Polk County Sheriff’s
Office, who elicited Smith’s confession.
As recounted in more detail in the magistrate judge’s thorough report (Doc. 21
at 4–8), Smith testified that after Detective Moran confronted him “with certain items
of evidentiary value,” Smith asked to speak to an attorney and removed from his
wallet a card for a pre-paid legal service. Moran refused to allow Smith to speak with
an attorney and threatened Smith with jail time for withholding information. As a
result, Smith signed a Miranda waiver form. According to Smith, he told both
counsel and his mother that he was denied an attorney. Smith’s mother likewise
testified that she told counsel her son was denied an attorney.
By contrast, Detective Moran testified that he began questioning Smith only
after Smith signed the Miranda waiver at 3:20 a.m. At 5:25 a.m., and after Smith
admitted to driving to each of the robberies, Smith asked if he could go home.
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Moran told Smith he could not leave, Smith requested an attorney, and Moran ended
the interview.
Smith’s trial counsel testified that neither Smith nor his mother reported that
Smith was denied an attorney. In fact, Smith acknowledged that he received a
Miranda warning, Smith confirmed there were no inaccuracies in Detective Moran’s
report, and Smith admitted to counsel, more than once, that he drove to the scene of
each robbery.
Undertaking a detailed analysis (Doc. 21 at 10–15), the magistrate judge
explained that Detective Moran’s and counsel’s account was more credible than
Smith’s (and his mother’s) version of events. And based on what counsel knew about
Smith’s confession, a reasonable attorney would have determined that it was futile to
file a motion to suppress.
Notably, Smith in his objection raises no challenge to the magistrate judge’s
well-supported credibility findings. Smith instead argues (Doc. 55 at 2) that even if
he told counsel no detail about his confession, counsel should have deduced that the
confession was involuntary based on certain “objective” facts.
First, Smith maintains that Detective Moran’s report documents a thirty-threeminute custodial interrogation between 2:47 a.m. and 3:20 a.m. (when Smith signed
the Miranda waiver). In particular, Smith points to the report’s statements that
Moran “made contact” with Smith at 2:47 a.m. and that Moran “was interviewing”
Smith at 2:47 a.m. (Case No. 8:05-cr-527-T-23AEP, Doc. 45-2 at 2–3). However,
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both statements are followed by a more detailed timeline, which states that after
Moran learned Smith was waiting in a conference room, he “made contact” with
Smith at 3:18 a.m. (Doc. 45-2 at 5)
Reading the report in its entirety and in context, a reasonable attorney would
conclude that Smith was initially greeted at 2:47 a.m. and placed in a conference
room and that Smith’s interview began at 3:18 a.m., only two minutes before he
signed the Miranda waiver.1 And even if a reasonable attorney would suspect that
Moran questioned Smith for thirty-three minutes before administering a Miranda
warning, Smith identifies no fact to support his conclusory assertion that the thirtythree-minute interview amounted to an unlawful custodial interrogation. Oregon v.
Mathiason, 429 U.S. 492, 495 (1977) (observing that a Miranda warning is not
required “simply because the questioning takes place in the station house, or because
the questioned person is one whom the police suspect”).
Smith next argues (Doc. 1 at 13–14, 20–22) that counsel should have realized
that Smith’s statements were “created by the police, under false pretenses.” Smith
alleges that the Polk County Sheriff’s Office called him to the station on a pretext —
asking him to pick up his impounded car — and falsely claimed that Smith initiated
the call. Smith maintains that counsel could have discovered the ruse by reviewing
Smith’s phone records (which show no outgoing call) and by obtaining the car’s
1
Both Smith and Moran testified to that effect at the evidentiary hearing. Moran testified
that he initially met Smith at 2:47 a.m. and had Smith moved to a conference room for questioning.
(Doc. 21 at 6–7) Smith testified that after he arrived at the station he was placed in a room by himself
and fell asleep. (Doc. 21 at 4)
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registration (which shows that the impounded car was registered to Smith’s mother,
suggesting that she would have been the proper person to retrieve the car). But as the
July 20, 2011 order explains (Doc. 12 at 3 n.3), Smith fails to provide the phone
records and thus fails to demonstrate prejudice. And even assuming that the Sheriff’s
Office tricked Smith into attending an interview, Smith identifies no valid basis for
suppression. United States v. Castaneda-Castaneda, 729 F.2d 1360, 1363 (11th Cir.
1984) (“[T]he police’s use of a trick alone will not render a confession involuntary”).
As a last resort, Smith argues that because his confession provided the sole
evidence of his guilt, counsel risked nothing by moving to suppress the statement.
However, counsel is not ineffective for failing to raise a non-meritorious issue,
Chandler v. Moore, 240 F.3d 907, 917 (11th Cir. 2001), and Smith identifies no fact or
law to demonstrate that a motion to suppress would have been granted. Hubbard v.
Haley, 317 F.3d 1245, 1253 (11th Cir. 2003) (“Among the factors we must consider
are the defendant’s intelligence, the length of his detention, the nature of the
interrogation, the use of any physical force against him, or the use of any promises or
inducements by police.”)
Finally, to the extent Smith argues that counsel could have more vigorously
challenged the confession at trial, counsel reasonably relied on an alternative defense
strategy: conceding Smith’s presence at the robberies and arguing that Smith lacked
the requisite intent to commit robbery. Chandler v. United States, 218 F.3d 1305, 1318
(11th Cir. 2000) (“[C]ounsel’s reliance on particular lines of defense to the exclusion
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of others — whether or not he investigated those other defenses — is a matter of
strategy and is not ineffective unless the petitioner can prove the chosen course, in
itself, was unreasonable.”) Indeed, Smith takes no issue with counsel’s chosen
defense — a defense that resulted in Smith’s acquittal on several charges.
2.
Failure to investigate alibi witnesses
Smith briefly alleges (Doc. 1 at 22) that counsel failed to investigate potential
alibi witnesses. At the evidentiary hearing, Smith and his mother testified that they
informed counsel about potential witnesses.
The magistrate judge rejected Smith’s and his mother’s testimony. Also, the
magistrate judge noted that Smith failed to present any witness at the evidentiary
hearing. Finally, the magistrate judge determined that reasonable counsel would
conclude that investigating an alibi witness was futile in light of Smith’s admissions
that he drove to the location of each robbery. (Doc. 21)
Smith files no objection (see Doc. 55), and he concedes (Doc. 83 at 6)
abandoning the claim.
3.
Failure to object to the Pre-Sentence Report
Smith maintains (Doc. 1 at 17–18) that counsel performed deficiently by failing
to object to the Pre-Sentence Report’s statement that the manager at Bill’s Market
“died as a result of the gun shot.” (PSR at ¶ 24) Because the robbery resulted in a
death, the guidelines yielded an advisory range of life imprisonment.
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The July 20, 2011 order (Doc. 12 at 9–10) dismisses the failure-to-object claim
because Smith demonstrated no prejudice. As the order explains, counsel’s failure to
object might have eliminated the need for the medical examiner’s testimony, but the
United States could have presented the medical examiner’s testimony. And Smith
presented no evidence to suggest that the clerk died from another cause.
The September 25, 2013 order (Doc. 54 at 3) allows Smith to move for
reconsideration. The parties agree (Doc. 83 at 6, Doc. 88 at 12) that Smith’s failureto-object claim is addressed by Smith’s Rule 60(b) motion (Doc. 56), the United
States’ response (Doc. 60), and Smith’s pro se motion to amend (Doc. 63).
Smith continues to speculate that the clerk might have died from other causes,
and he argues that counsel failed to investigate the cause of death. But Smith alleges
no “reasonably specific, non-conclusory fact” to suggest that the death was caused by
anything other than the gunshot wound inflicted during the robbery. Winthrop-Redin
v. United States, 767 F.3d 1210, 1216 (11th Cir. 2014) (internal quotation marks
omitted). Smith thus fails to show prejudice.
Smith newly argues (Doc. 56 at 6–7) that under Alleyne v. United States, 570
U.S. 99 (2013), a jury must find a fact that increases a mandatory minimum sentence.
However, Alleyne does not apply retroactively on collateral review, Jeanty v. Warden,
FCI-Miami, 757 F.3d 1283, 1285 (11th Cir. 2014), and counsel is not ineffective for
failing to anticipate a change in law. United States v. Ardley, 273 F.3d 991, 993 (11th
Cir. 2001).
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Smith raises other conclusory arguments, which were not included in the initial
motion to vacate (Doc. 1) and which are not incorporated in the amended motion to
vacate (Doc. 83). Even if Smith succeeds in raising any non-conclusory claims, the
claims lack merit.2
Johnson claim
The jury convicted Smith of three violations of Section 924(c)(1)(A), which
imposes a mandatory sentence when a defendant uses a firearm during a “crime of
violence.” Section 924(c)(3) defines “crime of violence” as a felony that:
(A) has as an element the use, attempted use, or threatened use of
physical force against the person or property of another, or
(B) that by its nature, involves a substantial risk that physical force
against the person or property of another may be used in the
course of committing the offense.
Subsection (A) is commonly known as the “use-of-force” clause, and subsection (B)
is known as the “risk-of-force” clause. United States v. St. Hubert, 883 F.3d 1319, 1327
(11th Cir. 2018). Citing Johnson v. United States, 135 S. Ct. 2551 (2015), Smith argues
that the risk-of-force clause is unconstitutionally vague.
After the parties completed briefing, the Eleventh Circuit held that the risk-offorce clause is not unconstitutionally vague. Ovalles v. United States, 905 F.3d 1231,
2
For example, Smith asserts (Doc. 56 at 5) in passing that counsel failed “to make even
cursory arguments regarding § 3553(a) factors [or] proportionality,” but the sentencing transcript
(Doc. 129 at 19–23) reveals that counsel addressed both proportionality and the § 3553(a) factors. In
addition, Smith incorrectly assumes that his acquittal of felony-murder in state court precludes a
federal sentence that considers the felony murder. United States v. Faust, 456 F.3d 1342, 1347 (11th
Cir. 2006) (“[r]elevant conduct of which a defendant was acquitted nonetheless may be taken into
account in sentencing for the offense of conviction, as long as the government proves the acquitted
conduct relied upon by a preponderance of the evidence”) (internal quotation marks omitted).
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1253 (11th Cir. 2018). And, as the United States correctly argues, even if the risk-offorce clause is invalid, Smith’s predicate offenses of Hobbs Act robbery and
attempted Hobbs Act robbery categorically qualify as “crimes of violence” under the
use-of-force clause. St. Hubert, 883 F.3d at 1328–1334.
New claims
1.
Rosemond claim
In the amended motion to vacate, Smith argues for the first time that his three
Section 924(c)(1)(A) convictions are invalid under Rosemond v. United States, 134 S.
Ct. 1240 (2014). Smith contends that Rosemond significantly limits aiding-andabetting liability under Section 924(c)(1)(A) by requiring the government to prove the
defendant possessed advance knowledge that the predicate offense would include the
use of a gun.
The United States concedes that Rosemond establishes a new substantive rule
retroactively applicable to cases on collateral review. Nonetheless, the United States
persuasively argues (Doc. 86 at 15–17) that the claim is untimely.
The Anti-Terrorism and Effective Death Penalty Act creates for a motion to
vacate a one-year limitation, which runs from the latest of four specified dates,
including the date on which the judgment of conviction becomes final, 28 U.S.C.
§ 2255(f)(1), and the date the Supreme Court first recognizes a new right, 28 U.S.C.
§ 2255(f)(3). Smith filed his Rosemond claim on April 28, 2017, nine years after his
conviction was final and three years after the Supreme Court’s decision. Smith does
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not suggest that the claim relates back under Rule 15(c), Federal Rules of Civil
Procedure, to a timely claim. And although Smith notes (Doc. 92 at 3) that he was
proceeding without counsel when Rosemond was decided, Smith’s pro se status,
standing alone, does not warrant equitable tolling. Johnson v. United States, 544 U.S.
295, 311 (2005); Wakefield v. R.R. Ret. Bd., 131 F.3d 967, 969 (11th Cir. 1997).
2.
Failure to object to the calculation of the Section 924(c) sentences
Smith argues that counsel performed deficiently by failing to challenge the
calculation of his three Section 924(c)(1)(A) sentences. Count Seven (discharging a
firearm), Count Ten (brandishing a firearm), and Count Twelve (discharging a
firearm) carry a mandatory minimum sentence of ten years, seven years, and ten
years, respectively. But for a second or subsequent Section 924(c)(1)(A) conviction,
Section 924(c)(1)(C)(i) imposes a mandatory minimum sentence of twenty-five years.
As a result, Smith was sentenced to ten years on Count Seven and twenty-five years
on Counts Ten and Twelve.
Citing the “rule of lenity” as applied in United States v. Chapman, 851 F.3d 363,
373–374 (5th Cir. 2017), Smith asserts that the Section 924(c)(1)(A) conviction with
the lowest mandatory minimum sentence should be designated the first conviction.
Smith maintains that his first conviction should have been Count Ten (a seven-year
sentence) instead of Count Seven (a ten-year sentence).
Assuming that the claim relates back under Rule 15(c), the claim lacks merit.
At the time of Smith’s sentencing, no controlling precedent required designation of
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the Section 924(c)(1)(A) conviction with the lowest mandatory minimum sentence as
the first conviction. Failing to anticipate a change in law does not constitute
ineffective assistance. Ardley, 273 F.3d at 993 (“In this circuit, we have a wall of
binding precedent that shuts out any contention that an attorney’s failure to
anticipate a change in the law constitutes ineffective assistance of counsel.”).
3.
Failure to object to the consecutive Hobbs Act sentences
Smith argues that counsel performed deficiently by failing to object to
consecutive sentences on the four Hobbs Act convictions. Assuming again that the
claim is timely under Rule 15(c), Smith fails to demonstrate prejudice.
Under 18 U.S.C. § 3584, a court retains discretion to impose concurrent or
consecutive sentences, and in exercising that discretion, a court must consider the
§ 3553(a) factors. At Smith’s sentencing, the court considered the § 3553(a) factors
and imposed consecutive sentences. (Case No. 8:05-cr-527, Doc. 129 at 25–28) The
Eleventh Circuit affirmed on direct appeal the reasonableness of Smith’s sentence.
Accordingly, Smith fails to demonstrate that counsel’s objection to consecutive
sentences would have achieved a different result.
Conclusion
The United States’ motion to dismiss (Doc. 86) is GRANTED-IN-PART and
Smith’s Rosemond claim is DISMISSED as untimely. The motion to dismiss is
otherwise DENIED AS MOOT.
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The magistrate judge’s report and recommendation (Doc. 21) remains
ADOPTED. The remaining claims alleged and incorporated in the amended motion
to vacate (Doc. 83) are DENIED. The clerk must enter a judgment in favor of the
United States and CLOSE the case.
DENIAL OF BOTH
CERTIFICATE OF APPEALABILITY
AND LEAVE TO APPEAL IN FORMA PAUPERIS
To merit a certificate of appealability, Smith must show that reasonable jurists
would find debatable both the merits of the underlying claims and the procedural
issues he seeks to raise. 28 U.S.C. § 2253(c)(2); Lambrix v. Sec’y, Fla. Dep’t of Corrs.,
851 F.3d 1158, 1169 (11th Cir. 2017). Because Smith fails to show that reasonable
jurists would debate the merits of the procedural issues or the merits of the claims, a
certificate of appealability is DENIED. Leave to appeal in forma pauperis is
DENIED. Smith must obtain permission from the circuit court to appeal in forma
pauperis.
ORDERED in Tampa, Florida, on November 2, 2018.
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