United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 10-2650
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Southern District of Iowa.
Brandon Reeves Tyerman, *
*
Appellant. *
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Submitted: February 17, 2011
Filed: June 9, 2011
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Before SMITH, GRUENDER, and BENTON, Circuit Judges.
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SMITH, Circuit Judge.
Brandon Reeves Tyerman challenges his conviction for being a felon in
possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), arguing that the district
court erred in denying his request to withdraw his Alford plea1 because he had the
absolute right to withdraw his guilty plea under Federal Rule of Criminal Procedure
1
Tyerman "entered a plea pursuant to North Carolina v. Alford, 400 U.S. 25, 37,
91 S. Ct. 160, 27 L. Ed. 2d 162 (1970) (allowing a defendant to plead guilty without
admitting guilt by acknowledging the government's evidence is sufficient to obtain a
conviction)." United States v. Woods, 596 F.3d 445, 447 (8th Cir. 2010).
11(d)(1). We agree and accordingly reverse the judgment of the district court and
remand the case for further proceedings consistent with this opinion.2
I. Background
Pursuant to a Federal Rule of Criminal Procedure 11(c)(1)(C)3 plea agreement,
Tyerman entered an Alford plea to being a felon in possession of a firearm, in
2
On appeal, Tyerman also asserts that the district court clearly erred in denying
his motion to suppress the firearm and abused its discretion in ruling that purported
"prior bad acts" were admissible. At oral argument, Tyerman's counsel agreed that if
this court ruled in Tyerman's favor on the plea-withdrawal issue, then we need not
address the other two issues. Additionally, at oral argument, the government conceded
that, because it is unknown if and how this case will proceed on remand should we
find that the district court erred in not permitting Tyerman to withdraw his plea, then
this court's ruling on the remaining issues would constitute an advisory opinion.
Therefore, we decline to address the two remaining issues.
3
Rule 11(c)(1)(C) provides that
[a]n attorney for the government and the defendant's attorney, or the
defendant when proceeding pro se, may discuss and reach a plea
agreement. The court must not participate in these discussions. If the
defendant pleads guilty or nolo contendere to either a charged offense or
a lesser or related offense, the plea agreement may specify that an
attorney for the government will . . . agree that a specific sentence or
sentencing range is the appropriate disposition of the case, or that a
particular provision of the Sentencing Guidelines, or policy statement,
or sentencing factor does or does not apply (such a recommendation or
request binds the court once the court accepts the plea agreement).
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violation of § 922(g)(1).4 The plea agreement called for a sentence of 50 months'
imprisonment, to run consecutive to Tyerman's state court sentence.
At the change-of-plea hearing, Tyerman confirmed to the district court that he
had entered into a plea agreement with the government and had read the plea
agreement before he signed it. The court explained to Tyerman that it could only
accept Tyerman's guilty plea if it was
convinced of three things:
1. The only reason you're pleading guilty is because you think the
Government can prove you guilty by a standard of beyond a reasonable
doubt, okay?
2. You understand that by pleading guilty, as opposed to being found
guilty, you give up important rights that you would otherwise have under
the Constitution, and under the rules and the statutes of the United States.
Do you understand that?
Tyerman answered, "Yes." The court then stated:
The third thing you have to understand, and I have to make certain you
understand before I'm allowed the discretion to accept your plea, is that
you know the maximum punishments that could come to you as a result
of your conviction of Count 3 of the superseding indictment; do you
understand that?
4
The plea agreement was also conditional, as Tyerman reserved the right to
appeal the district court's denial of his motion to suppress the firearm and its ruling on
the government's motion in limine.
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Tyerman answered, "Yes, but it's my understanding, and you just correct me if I'm
wrong, that if the Court decides to impose more than what's agreed, that I have the
right to withdraw the plea." The court responded that Tyerman was "absolutely right."
Then, the court stated:
And so you understand that if I don't accept the agreed-upon sentence
that you and the Government have agreed to in paragraph 4 of the plea
agreement, Mr. Tyerman, that you would be allowed the opportunity to
withdraw your plea, go to trial, and your not guilty plea would be
reinstated? Do you understand that?
Tyerman answered, "That is the case, Your Honor."
Tyerman also confirmed his understanding that he was giving up or waiving his
rights to a jury trial. When asked whether he understood that, if the court accepted his
plea, such plea "has the same legal impact as if the jury heard all of the evidence,
returned a verdict of guilty against you," Tyerman responded, "Yeah." Tyerman also
understood that he had the right to persist in his previously made plea of not guilty and
indicated his understanding that his "plea is a waiver or a giving up of all [his]
important constitutional and trial rights" that the court previously described. He
verified that he was "pleading guilty today because [his] plea is voluntary" and that
his "decision to plead guilty [was not] the result of any promises, other than the
written promises that appear in the plea agreement."
The court asked Tyerman whether he "believe[d] that based upon the facts
recited by the Assistant U.S. Attorney, that the Government has sufficient evidence
that a jury would find [him] guilty of Count 3 of the indictment by a standard of
beyond a reasonable doubt," and Tyerman answered, "Yes, Your Honor." Then the
court stated:
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Mr. Tyerman, I'm going to put off accepting your plea because I want the
opportunity to review the presentence report [(PSR)] . . . .
***
To the extent that [the probation officer] can give this some priority, I'd
appreciate it. I never—I've tried one other Alford plea in my 12 years,
three months, two days, and two hours here, and I've rejected that, so I'm
very concerned that this meets the legal requirements. Both of the
lawyers have worked hard on it, and I want to make sure that if it's not
something I can accept, that we give Mr. Tyerman the right to withdraw,
if he needs to withdraw, and if we can, we need to sentence him.
***
I'm going to put off accepting your plea until the preparation of the
presentence report.
(Emphasis added.)
The government then asked the court whether it was "going to make the
findings as to the voluntariness." The court replied, "Yeah. I generally don't make
those until I accept the plea, but I think I will today because of where we're at."
(Emphasis added.) The court then made the requisite voluntariness findings.
Over nine months later, Tyerman's sentencing hearing commenced. At the
beginning of the proceedings, the district court stated, "The record should show that
the Court previously took a conditional plea from the Defendant." Tyerman's counsel
then informed the court that Tyerman "against [counsel's] advice, . . . want[ed] to
withdraw his plea." The court noted that Tyerman had "prepared an extensive
statement" and that the "reason we were late starting this morning is that counsel for
the Government and the Defendant came back to chambers. And [Tyerman's counsel]
gave [the court] Mr. Tyerman's statement, which [the court] had the opportunity to
read." To "preserve error," the court "suggested that [Tyerman's] counsel make a
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record on that statement that he permitted [the court] to read . . . ." The court then
informed Tyerman that if he wanted more time to read the PSR, then the court would
recess for him to read the report. But Tyerman chose to rely on what he had already
read and his counsel's advice. Tyerman commented that he had "sufficient knowledge
of the way the report reads," but he did not "think the Court ha[d] sufficient
knowledge to make a full decision or a complete decision on all things."
The court then quoted from the change-of-plea transcript regarding Tyerman's
previous admission that the government has provided "'sufficient evidence that a jury
would find [Tyerman] guilty of Count 3 of the indictment by a standard of beyond a
reasonable doubt.'" The court also quoted its prior statement that it was "'going to put
off accepting [Tyerman's] plea because [it] want[ed] the opportunity to review the
presentence report.'" (Emphasis added.) Thereafter, the court stated:
So the record should show that the Court has now read the report. The
guideline promulgated by the sentencing commission entitled 6B1.2(c)
provides as follows: "In the case of a plea agreement that includes a
specific sentence Rule 11(c)(1)(c), the Court may accept the agreement
if the Court is satisfied either that: (1) the agreed sentence is within the
applicable guideline range; or (2)(A) the agreed sentence departs from
the applicable guideline range for justifiable reasons; and (B) those
reasons are specifically set forth in writing in the statement of reasons or
judgment and the commitment order."
So the Court is going to accept Mr. Tyerman's plea under 6B1.2,
Paragraph (c)(2) because the Court believes that the agreed sentence
departs from the applicable guideline range for justifiable reasons and
(B) those reasons are specifically set forth in writing in the statement of
reasons or the judgment and commitment order, which the Court will do
because I do believe that the agreed-upon sentence is one that complies
with 3553, in that it is a sentence that is sufficient, but not greater than
necessary.
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So the Court now formally accepts the plea.
(Emphasis added.)
Tyerman's counsel then spoke regarding Tyerman's desire to withdraw his plea.
According to counsel, he and Tyerman had reviewed the PSR and projected
Guidelines sentence "on several occasions prior to the time that [Tyerman] made the
arrangements to enter into the plea agreement with the Government." Counsel
expressed his belief that Tyerman understood the plea agreement and that Tyerman's
"difference is with what he thinks the projected sentence will be under the
11(c)(1)([C]) agreement and whether or not his numbers that he arrives at matches up
with what the presentence report will be." Counsel stated that "[p]art of the reason"
that Tyerman entered a plea was because his extensive criminal history record "could
have been grounds to put him at the high end of the [G]uidelines." Counsel then
expressed his belief that Tyerman could withdraw his plea under Federal Rule of
Criminal Procedure 11, stating:
I believe Mr. Tyerman would be entitled to the withdrawal of his plea,
whether I represent him later or not on the Rule 11, the Court having not
accepted that plea at the prior plea hearing on the Rule 11, which would
allow his withdrawal prior to that time. And I think his withdrawal
would trump the Court's acceptance. And I would ask the Court, even
though I've advised him against it, I would argue to the Court to accept
his withdrawal.
(Emphasis added.) In response, the government stated:
Well, we would resist the motion to withdraw his plea. I understand that
Rule 11 does say that a Defendant may withdraw a plea of guilty or nolo
contendere before the Court accepts the plea for any reason or no reason.
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I mean, he did indicate prior to you coming out on the bench that he did
want to withdraw his plea. However, it's at the 11th hour. It's the
morning of sentencing. He pled guilty well over—well, I think it was
almost a year ago. And the initial PSR had been outstanding for quite
sometime. So he's had plenty of time to consider this and to think about
it.
And while I understand that the rule says that, you know, he may have
an argument that, "Well, if you would have let me make my motion
before you accepted the plea, then I'd be able to withdraw it."
Now that you've accepted the plea, the fair and just reason analysis
applies under the Eighth Circuit case law.
***
You know, the only concern I have, Judge, is what Rule 11 says. And on
appeal if the Eighth Circuit would say, "Well, you know, you knew,
Judge, before you went on the bench that he wanted to withdraw his
plea, and you really didn't let him do that before you granted—or
accepted the plea, which then changed the standard of how you look at
it." So that's just a concern that I have.
(Emphasis added.)
Tyerman then expressed his desire to withdraw his plea and his understanding
that "because Rule 11([d])(1) provides that it can be withdrawn at any time up until
the Court accepts it for any reason or for no reason at all, I've always been under the
impression that there would be an appropriate day that it came about." In response, the
court stated that "the only condition on your plea was whether I was going to accept
it. There were no other conditions that I'm aware of. Were you under the impression
that there were other conditions?" Because of Tyerman's misunderstanding of the
question, the district court rephrased the question, stating, "Other than the condition
that I accept or reject the presentence report before I decided to accept or reject your
plea, do you know of any other conditions that your plea was based upon?" Tyerman
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answered, in relevant part, that the district court "reserved acceptance for a reason."
The court responded:
The reason that we have the long plea colloquy and that it was reduced
to writing was the only condition that was placed upon the acceptance of
your plea, Mr. Tyerman, was whether or not I, as the sentencing Court,
thought the sentence that was agreed upon by you and [the government]
was one that was sufficient, but not greater than necessary. Okay. That
was the only condition; right?
Any other record you want to make on your attempted withdrawal of
your plea?
Tyerman then stated:
Yes. If the Court didn't accept the plea and the guidelines allow me to
withdraw it for any reason or no reason at all up until the time the Court
accepts it, as well as 11([d])(2)(b) which states if the Defendant can
show a fair and just reason for requesting a withdrawal.
After the court verified with Tyerman's counsel that the PSR correctly
calculated the sentence, the court accepted the plea agreement. After allocution, the
court sentenced Tyerman to "a total term of 50 months on Count 3 of the superseding
indictment, which will be served consecutive to the sentence in Story County, Iowa,
Docket No. FEC R040696."
II. Discussion
Tyerman asserts that he had the absolute right to withdraw his guilty plea under
Federal Rule of Criminal Procedure 11(d)(1) in light of the district court's deferral of
acceptance of his guilty plea at the change-of-plea hearing. Tyerman maintains that
this rule leaves the district court with no discretion to deny a pre-acceptance
withdrawal of a guilty plea. According to Tyerman, he alerted the district court prior
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to sentencing that he wanted to withdraw his plea because the court had not yet
accepted the plea. Tyerman contends that the record reflects that the district court did
not explicitly, implicitly, or conditionally accept his guilty plea or the plea agreement
during the change-of-plea hearing. Tyerman asserts that even though the district court
detailed the consequences of pleading guilty and found that Tyerman entered the plea
voluntarily, the court expressly declined to accept the plea during the change-of-plea
hearing. Tyerman points out that the district court did not accept the guilty plea until
the sentencing hearing, which was after both the court and the government became
aware that he wanted to withdraw his plea.
In response, the government argues that Tyerman's argument fails because the
change-of-plea and sentencing transcripts, considered as a whole, demonstrate that the
district court implicitly accepted Tyerman's guilty plea during the change-of-plea
hearing but deferred acceptance of the Rule 11(c)(1)(C) plea agreement pending
review of the PSR. According to the government, pursuant to United States v. Hyde,
520 U.S. 670 (1997), a district court may accept a guilty plea while deferring
acceptance of the plea agreement. The government maintains that the district court
engaged in a complete and thorough Rule 11 colloquy with Tyerman and contends
that a fair reading of the colloquy, particularly when comparing the district court's
interchangeable use of the terms "plea" and "plea agreement" at both the change-of-
plea and sentencing hearings, reveals that the district court intended to accept
Tyerman's plea but reserve acceptance of the Rule 11(c)(1)(C) plea agreement.
Federal Rule of Criminal Procedure 11(d)(1) provides that "[a] defendant may
withdraw a plea of guilty . . . before the court accepts the plea, for any reason or no
reason. " See also United States v. Head, 340 F.3d 628, 630 (8th Cir. 2003) ("Under
Rule 11(d), a criminal defendant is allowed to withdraw a guilty plea for any reason
(or no reason at all) until the time the trial court accepts the plea.").
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The present case is substantially similar to Head, in which we held that,
pursuant to Rule 11(d), the defendant "had a right to withdraw his guilty plea when
he moved to do so . . . because his plea had not yet been accepted." Id. In that case, we
only "look[ed] to the transcript of [the defendant's] change of plea hearing"—the
proceeding that occurred prior to the date of the motion to withdraw—"to determine
whether [the defendant's] guilty plea was accepted before he moved to withdraw it."
Id. After throughly scrutinizing the transcript, we were unable to "say that the district
court accepted [the defendant's] guilty plea at that time," explaining:
First, the court does not explicitly do so through the use of words such
as "I accept your plea of guilty." Nor do we believe that the district court
implicitly accepted the plea. Although the district court does detail the
consequences of a guilty plea—giving up rights to further trial
proceedings—it also makes clear that the plea is not yet accepted. The
district court states:
[I]f [the plea agreement] is vacated or rejected at the time
of sentencing—as I go over this and think about it in the
weeks ahead and decide that the agreement is not
appropriate, that ten years isn't enough or whatever, then
you would go back to trial on all of the original charges.
(Change of Plea Tr. at 41 (emphasis added).) The district court then
advised [the defendant] that pursuant to the plea agreement, the
government "reserve[d] the right to withdraw from this plea agreement
if you commit any new offense before I accept the guilty plea." (Id.
(emphasis added).)
***
The issue before us is simply whether the district court accepted [the
defendant's] guilty plea at all. Guided by the language used by the
district court indicating that the plea was not yet accepted, and in the
absence of any explicit statement to the contrary, the record reflects that
the plea, as opposed to only the plea bargain, was not accepted at the
change of plea hearing. It follows that [the defendant's] guilty plea
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remained unaccepted by the district court when he moved to withdraw
it on September 4, 2002, and under Rule 11(d) [the defendant] retained
an absolute right to withdraw his plea. The district court's failure to allow
him to do so was error.
Id. at 630–31 (emphasis added in part).
After thoroughly reviewing the change-of-plea hearing transcript, see id. at 630,
"we cannot say that the district court accepted [Tyerman's] guilty plea at that time."
Id. First, as in Head, the district court never explicitly accepted the guilty plea
"through the use of words such as 'I accept your plea of guilty.'" Id.
Second, like in Head, we do not "believe that the district court implicitly
accepted the plea." Id. "Although the district court does detail the consequences of a
guilty plea—giving up rights to further trial proceedings—it also makes clear that the
plea is not yet accepted." Id. at 630–31. On two occasions, the district court explicitly
indicated that it was not accepting the guilty plea at the change-of-plea hearing, as it
stated that it was "going to put off accepting [Tyerman's] plea" pending its review of
the PSR. Furthermore, when the government asked whether the court was "going to
make the findings as to the voluntariness," the court replied, "Yeah. I generally don't
make those until I accept the plea, but I think I will today because of where we're at."
(Emphasis added.)
"Guided by the language used by the district court indicating that the plea was
not yet accepted, and in the absence of any explicit statement to the contrary," the
record demonstrates that the district court never accepted Tyerman's guilty plea at the
change-of-plea hearing. Id. at 631. "It follows that [Tyerman's] guilty plea remained
unaccepted by the district court when he moved to withdraw it [at the sentencing
hearing], and under Rule 11(d) [Tyerman] retained an absolute right to withdraw his
plea. The district court's failure to allow him to do so was error." Id.
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Although we need not look beyond the change-of-plea hearing transcript to
reach our decision, id. at 630, the sentencing transcript buttresses our conclusion.
First, only after it learned that Tyerman wanted to withdraw his plea did the district
court indicate that it was "going to accept Tyerman's plea." As explained supra, the
district court erred by failing to permit Tyerman to withdraw his plea at the beginning
of the sentencing hearing.
And, contrary to the government's argument on appeal, the government's
counsel acknowledged at the sentencing hearing that the district court had not
accepted Tyerman's plea prior to the sentencing hearing, stating:
You know, the only concern I have, Judge, is what Rule 11 says. And on
appeal if the Eighth Circuit would say, "Well, you know, you knew,
Judge, before you went on the bench that he wanted to withdraw his
plea, and you really didn't let him do that before you granted—or
accepted the plea, which then changed the standard of how you look at
it." So that's just a concern that I have.
(Emphasis added.)
The government's reliance on several of our sister circuits' cases in support of
its argument that the district court implicitly accepted Tyerman's guilty plea is
misplaced. See, e.g., United States v. Robinson, 587 F.3d 1122, 1126 (D.C. Cir. 2009)
(holding that district court accepted defendants' guilty pleas even though it refrained
from accepting or rejecting defendants' plea agreements at plea hearing and used terms
"plea" and "plea agreement" interchangeably because court specifically asked each
defendant how he pleaded and then acknowledged its acceptance of each guilty plea);
United States v. Byrum, 567 F.3d 1255, 1263–64 (10th Cir. 2009) (holding that district
court's provisional acceptance of the defendant's guilty plea subject to review of PSR
amounted to an acceptance of the guilty plea under Rule 11); United States v. Battle,
499 F.3d 315, 318, 321 (4th Cir. 2007) (holding that defendant's guilty plea was
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accepted where district court stated the defendant's "plea of guilty is provisionally
accepted"); United States v. Jones, 472 F.3d 905, 909 (D.C. Cir. 2007) (holding that
defendant's guilty plea was accepted where district court "announced that 'the plea of
guilty is conditionally accepted subject to review of the plea agreement and the
presentence report, and I find you guilty'").
First, the district court did not state that it was "conditionally" or
"provisionally" accepting the guilty plea and merely deferring acceptance of "the
terms of the underlying plea agreements." Byrum, 567 F.3d at 1261 (citing Battle, 567
F.3d at 321–22; Jones, 472 F.3d at 909). Instead, the district court specifically stated
that it was "going to put off accepting" Tyerman's plea, which is a deferral of
acceptance of "the guilty plea itself." Id. (citing United States v. Shaker, 279 F.3d 494,
497 (7th Cir. 2002) (holding that district court abused its discretion in denying
defendant's motion to withdraw guilty plea because defendant was entitled to
withdraw plea freely and without inquiry where district court had not yet accepted
plea but had deferred decision on acceptance or rejection until after its review of the
PSR); Head, 340 F.3d at 631). "Rule 11 . . . contemplates an acceptance of a guilty
plea conditioned on the ultimate acceptance or rejection of the plea agreement." Id.
(citing Fed. R. Crim. P. 11(c)(3)–(5)). By contrast, "Rule 11 does not necessarily
envision a deferral of a decision on the plea itself." Id. "[W]hat matters ultimately is
the language of the trial court and the context in which it is used." Id. Here, as in
Shaker, the district court's language indicated that it was "putting off" or "deferring"
acceptance of the guilty plea pending its review of the PSR.
Second, Robinson does not support the government's argument that a fair
reading of the colloquy between the district court and Tyerman indicates that the
district court accepted Tyerman's guilty plea but merely reserved acceptance of the
plea agreement, as evidenced by its interchangeable use of the terms "plea" and "plea
agreement" at the change-of-plea hearing and sentencing. In Robinson, the district
court held a Rule 11 plea colloquy with each defendant individually, while the other
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two codefendants remained in the room. 587 F.3d at 1125. Each defendant pleaded
guilty. Id. On appeal, the defendants argued that, by deferring acceptance of the plea
agreements, "the court failed to clearly distinguish between their plea agreements and
their guilty pleas, which left them with the belief that it had accepted neither." Id. at
1126. The D.C. Circuit rejected the defendants' argument, explaining:
While the district court at times used the terms "plea" and "plea
agreement" interchangeably, e.g., Plea Tr. at 18, 24–25, 29, 35, 42, the
transcript of the plea hearing, read in its entirety, establishes that the
court accepted the appellants' guilty pleas. The court asked each
appellant how he pleaded as to the two separate counts. Plea Tr. at 25,
37–38, 46. After each appellant twice responded, "Guilty," the court told
him that it "accept[ed]" his plea. Id. at 25, 38, 46. Despite the court's
occasional imprecision, therefore, it plainly accepted the appellants'
guilty pleas and left them "no reasonable basis" for thinking otherwise.
Jones, 472 F.3d at 909.
Id.
In Robinson—unlike in the present case—the district court clearly indicated that
it was accepting something, which the D.C. Circuit determined to be the plea, as
evidenced by the district court's statement that it "accepted" the defendants' pleas. By
contrast, even if the district court in the present case used the words "plea" and "plea
agreement" interchangeably, it never stated that it was accepting anything. As
previously emphasized, it said the opposite—that it was "going to put off accepting
[Tyerman's] plea." As a result, the district court erred in not allowing Tyerman to
withdraw his plea.
III. Conclusion
For the foregoing reasons, we reverse the judgment of the district court and
remand for further proceedings consistent with this opinion.
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