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Federal Judge Harry T. Edwards

Excerpt from 947 Federal Court Reporter, 2d Series - Pages 963-971

Harry T. Edwards, Circuit Judge, concurring: The two clever swindlers had a good laugh as they got ready to leave the city. The nobles who were to carry the train were clutching at the air. Neither dared to admit that he couldn't see the Emperors's clothes.

And so the Emperor walked through the city under a magnificent canopy, and all the people cried,"Oh!" and "Ah! The Emperor's new clothes are splendid!"

Not one person was willing too say that he was stupid or unfit for his job. Each pretended the Emperor's clothes were a great success.

But he doesn't have anything on!" cried one little child in the crowd.

"Just listen to the voice of the innocent!" said the father, trying to hush his child.

Whispers began to buzz about: "A child says the Emperor has nothing on!"

The Emperor's heart almost stopped beating. He knew the little child was right. But he thought, "The procession must go on." So he stood a little straighter and walked a bit faster. And the nobles hurried to keep up with him, carrying a train that wasn't even there.

Hans Christian Andersen, The Emperor's New Clothes

Like the Emperor's new clothes, the Sentencing Guidelines are a bit of a farce. I recently overheard a respected member of the criminal bar say, "I'll take judicial discretion any day--the Guidelines are a joke!" There are more than a few judges across the country who, in greater or lesser degree, share this critical view of the Guidelines.{1} In this case, I join in Judge Ruth B. Ginsburg's excellent opinion for the majority, because I think it reaches the correct result under the Guidelines, which I am bound by law to enforce. I write separately, however, to express my profound concerns about the efficacy of the Guideline system.

We are told that the Guidelines are fair because they ensure "uniformity" in sentencing. Equally guilty persons receive equally stringent sentences , so it is said. But, as we have come to learn, the Guidelines are rigid in formulation and, thus , often produce harsh results that are patently unfair because they fail to take account of individual circumstances that might mitigate in favor of a properly "tailored" sentence.

We also have come to understand that the Guidelines do not, by any stretch of the imagination, ensure uniformity in sentencing. Assistant U.S. Attorneys ("AUSAs") have been heard to say, with open candor, that there are many "games to be played," both in charging defendants and in plea bargaining, to circumvent the Guidelines. Because of this reality, sentences under the Guidelines often bear no relationship to what the Sentencing Commission may have envisioned as appropriate in any given case.

The first "game" to be played under the Guidelines occurs in connection with the charging decision. The confluence of the Guidelines' restriction of judicial discretion and the enactment of mandatory minimum sentences for many drug crimes {2} has placed enormous power in the hands of the AUSA{3}, effectively "replacing judicial discretion over sentencing with prosecutorial discretion." Consider the case of a defendant who is charged with possessing ten grams of crack cocaine with intent to distribute-an offense carrying a Guideline sentence of 63-78 months for a defendant with no criminal record, and a mandatory minimum sentence of five years. If the prosecutor elects to add a weapons charge in connection with the drug offense, the Guideline range goes to 78-97 months and the mandatory minimum rises to ten years. The prosecutor also may choose to assert certain subsidiary facts which will affect the sentence{4}, such as committing the offense at or near a school, or distributing to a minor -both of which add at least two offense levels (a minimum enhancement of 19 months in my hypothetical). The only way for the defendant to escape these lengthy minimum terms is to cooperate with the government in the hope that his assistance will be "substantial" enough to induce the prosecutor to make a motion for downward departure; that decision, however, rest in the prosecutor's discretion{5}.

The second disparity-creating game to be played-this one by prosecutors and defense attorneys in collaboration-is the plea bargaining process. By offering a plea, defense counsel may be able to cut a deal with a prosecutor to "bend the rules." However, whether the rules actually get bent may depend upon the luck of the draw in judicial assignment: if the trial judge is willing to look the other way, the facts can be manipulated and the Guidelines ignored because no appeal will be taken by the prosecutor.

Assistant U.S. Attorneys are under a general policy mandate not to drop readily provable criminal counts against a defendant But it is well-understood that AUSAs can and do drop counts if a defendant is perceived to be less culpable than the Guidelines might indicate, or if dropping the count is necessary to induce a plea. In addition (or as an alternative) to dropping counts, the AUSA also may vary the subsidiary facts asserted in a given case, thereby changing the sentence. Under the Guidelines, the quantity of drugs involved in a drug offense, and the amount of money involved in theft and fraud-related offenses, control the base offense level for sentencing. AUSAs, often in plea bargains, can affect sentencing by "adjusting" the amounts of drugs and money claimed to be involved in a criminal charge. Thus, two defendants caught with the same amount of drugs-even in the same transaction-can be sentenced differently, even when all other things appear to be equal{6}.

Yet another glitch in the process is the Probation Officer, the person assigned to "characterize" the defendant so that "points" for upward and downward adjustments can be assigned pursuant to the Guidelines. Under the Guidelines, the Probation Officer acts as both investigator and fact-finder{7}. Enormous potential power rests in his or her hands, for how the Probation Officer chooses to characterize the defendant may add years of confinement to a jail term. For example, the Probation Officer may find that the defendant was a ring-leader in the offense (which adds four offense levels){see U.S.S.G. 3B1.1(a)} that he abused a position of trust (adding two levels){see U.S.S.G. 3B1.3}; that he obstructed justice (adding two levels){see U.S.S.G. 3C1.1}; or that he is not truly contrite (foreclosing the possibility of a downward adjustment for acceptance of responsibility.{see U.S.S.G 3E1.1}){8}

Perhaps most importantly, the Probation Officer determines and evaluates the defendant's "relevant conduct"-that is, conduct (often uncharged) that is related to, but not part of, the offense for which conviction has been sought. This determination can have a substantial impact on the applicable Guideline range.

The Probation Officer may be accountable to almost no one , however, save those situations in which the Officer elects to work in concert with the U.S. Attorney's Office.{9} Nor is the Presentence Report subject to public scrutiny. Although it is always possible for a defendant or a prosecutor to challenge the contents of the Report, and it is also possible for a trial judge to reject all or part of the Report, many trial judges appear to accept the Report as written. Of course, to the extent that there are errors or omissions in the Report, sentencing uniformity is undermined.

I address the gamesmanship of the Guidelines and the problematic roles of the AUSAs and Probation Officers only to emphasize that the Guidelines have not eliminated sentencing discretion. Rather, they have merely transferred it from district judges-who, whatever their perceived failings, are at least impartial arbiters who make their decisions on the record and subject to public scrutiny and appellate review-to less neutral parties who rarely are called to account for the discretion they wield.{10} Thus, the discretion and disparity game continues: it is only the players who have changed.

Viewed in this light, the Guidelines bring to mind the story The Emperor's New Clothes. We continue to enforce the Guidelines as if, by magic, they have produced uniformity and fairness, when in fact, we know it is not so. In the view of many, myself included, the Guidelines merely substitute one problem for another, and the present problem may be worse than its predecessor. Nonetheless we, the district courts, the U.S. Attorney's Office{11} and the defense bar are forced to press on-through contorted computations, lengthy sentencing hearings and endless appeals-in the service of a sovereign who can be neither clothed nor dethroned.

This case is an example of how the Guidelines work at their worst. Although Harrington's crime was admittedly serious, he was a first offender and was addicted to narcotics. An experienced district judge, after extensive hearings complete with expert testimony, concluded that Harrington 's prospects for drug rehabilitation were very good. Based upon this finding, the judge reasonably concluded that the eight-year sentence prescribed by the Guidelines was unnecessary and excessive in Harrington's case. The judge's finding as to Harrington's likelihood of rehabilitation was not based on whimsy, as evidenced by the fact that the judge rejected a reduction for Harrington's co-defendant after finding that his prospects for rehabilitation were not as good. Nor was the judge's reasoning novel or adventurous. The Commission itself has determined that drug abuse leads to criminality: logically, then, rehabilitation reduces the risk of recidivism, and, therefore, the need for incapacitation. Yet, despite the propriety of the procedures followed by Judge Oberdorfer and the soundness of his sentencing rationale, the Guidelines require us to reverse.{12}

Ironically, Harrington might have avoided the need for a downward departure by playing the Guideline game more skillfully. Had his counsel been more cunning, the prosecutor more amenable, or the Probation Officer of a different stripe, the rules might have been bent a little and the departure question effectively mooted. For example, had the prosecutor (perhaps in response to a plea offer deleted the words "five grams or more" from the second count of the indictment, the five-year mandatory minimum would not have applied, and Harrington's offense level would have been reduced by between two and 14 levels, depending upon what lesser amount was charged. But because the discretion to depart from the Guidelines was exercised publicly by the District Court, instead of behind closed doors at the U.S. Attorney's Office, reversal results.

The inequity wreaked in this case is endemic to the Guideline system. The appellate cases show a disparity between the relative ease of upward departure and the niggardly application of downward adjustments. The courts of appeals seem quick to find aggravating factors "unusual" enough to warrant upward departure, while mitigating factors are often rejected as "adequately considered" by the Sentencing Commission. The instant case illustrates the point.

The decision that we reach today is probably the correct one under the existing legal regime. Our result, however, is somewhat strained, and it encounters dissent among other courts. We attempt to find a middle ground between the wholehearted acceptance of drug rehabilitation as a ground for departure and its complete rejection. Yet, because the relevant inquiry is whether the Sentencing Commission "considered" drug rehabilitation-presumably a "yes" or "no" proposition-our compromise approach is perhaps less than ideal. Moreover, I am troubled by the fact that our holding will benefit addicts who accomplish the laudable and difficult task of rehabilitation no more than they would have benefited had they demonstrated sincere contrition to the Probation Officer; indeed, for those rehabilitated addicts who would otherwise qualify for credit under the "acceptance of responsibility" Guideline, our decision today holds no benefit at all.

I join the result because it is as good as any other result, and better than most, under our existing system. I am bound by the system, because Congress established it, and the Supreme Court has upheld it. Nonetheless, I tend to agree with the many judges who have spoken out against the Guidelines-they are indeed a bit of a farce.


{1} See Appendix of Cases and Authorities

{2}These mandatory minimum sentences were enacted in the Anti-Drug Abuse Act of 1986, Pub. Lib. No 99-570, 1001-1009, 100 Stat. 3207, 3207-2 to 3207-8 (codified in scattered sections of 18 U.S.C. and 21 U.S.C.) The mandatory minimums have met with strenuous criticism by judges and commentators. See 1990 STUDY COMMITTEE REPORT supra, at 133-34 (noting near universal judicial opposition to mandatory minimum sentence provisions and urging their repeal). Even the Sentencing Commission seems to agree. See U.S.S.G. MANDATORY MINIMUM PENALTIES IN THE FEDERAL CRIMINAL JUSTICE SYSTEM 33-34 (1991)(concluding that mandatory minimums may create unwarranted sentencing disparity).

{3} See U.S. vs. Roberts, 726 F.Supp. 1359, 1366 n. 46 (D.D.C. 1989) ("It is a singularly unimaginative prosecutor who, with the use of these two instruments [Guidelines and mandatory minimums], is unable to dictate with almost unfailing precision exactly what the sentence will be.")

{4} Of course, such subsidiary facts may be ascertained and used in the Guideline computation by the Probation Officer or the sentencing judge even if the prosecutor does not raise them. In Practice this is unlikely, however, because the defendant, who is the major potential source of offense information besides the prosecutor, is unlikely to volunteer incriminating facts.

{5} As one practitioner has lamented, "There was a time you could go before a judge and try to get a break for your client. Now the judge's hands are tied by the guidelines and so you go to a prosecutor and he may lower the sentence." Marcia Chambers, The Old Days: When A Plea Was a Plea...Nat'l L.J. November 6, 1989, at 13 ("The Old Days")(quoting Albert Alschuler, Professor of Criminal Law at Univ. of Chicago) One wonders whether the Guidelines, in transferring discretion from the district judge to the prosecutor, have not left the fox guarding the chicken coop of sentencing uniformity.

{6} As perhaps best explained by Judge Greene of the District Court for this District: "Because of the many options available to him, the prosecutor is free to introduce as much sentencing disparity into the system as he may choose. Prosecutors, sometimes for good reasons, sometimes for bad-just like some judges before them-have done just that. Every district judge has witnessed, and witnessed many times, the bringing of wholly disparate charges against defendants whose conduct was essentially identical, the consequence being that the judge is required by the guidelines to impose sentences that he may consider, or that objectively are, arbitrary and discriminatory in every meaningful sense."Roberts, 726 F.Supp at 1365-6

{7} Some have questioned the competence of Probation Officers to fulfill this role. See e.g., 1990 STUDY COMMITTEE REPORT supra, at 138 ("There is a growing concern among judges, prosecutors, and defense lawyers that the new sentencing regime imposes on these officers responsibilities as independent investigators and fact-finders--recommending decisions and legal judgments as to the application of rules to factual situations--for which they may not be particularly well trained or well suited.")

{8} The Probation Officer's power to make these determinations sometimes may leave the defendant in a bind. As described by one commentator;

"If the defendant tells the truth about the crime, the probation officer will add up the points differently. If the defendant denies the allegations, he or she may get a stiffer sentence for "obstruction;" if the defendant refuses to talk at all, he or she could preclude credit for accepting responsibility for the crime. Probation Officers,supra,at 13

{9} It appears that there may be situations, for instance, where a Probation Officer will contact an AUSA in advance of writing a Presentence Report and ask, "how much of a 5K1.1 departure do you want in this case?" The report is then written accordingly.

{10} Chief Judge McNichols of the Eastern District of Washington made this point forcefully in U.S. vs. Boshell, 728 F.Supp 632, 637-38 (E.D.Wash.1990) Noting that before the Guidelines, "disparities were controllable and tolerable because decisions were public and reviewable," he points out that under the current regime;

"Congress has...shifted discretion from persons who have demonstrated essential qualifications to the satisfaction of their peers, various investigatory agencies, and the United States Senate to persons [AUSAs] who may be barely out of law school with scant life experience and whose common sense may be an unproven asset." Id. at 637

{11} The Second Circuit recently increased the burden imposed upon AUSAs by the Guidelines in U.S. vs. Pimentel, 932 F.2d 1029, 1033-34 (2d Cir.1991), ruling that if AUSAs are unwilling to engage in direct "sentence bargaining," they should calculate and inform the defendant of his likely Guideline range prior to agreeing to a plea, in order to avoid unfair surprise.

{12} In this regard, I am reminded of Judge Oberdorfer's opening comments at the 1987 Judicial Conference of this Circuit. Drawing an analogy between district judges facing the coming of the Guidelines and European youths facing the onset of the First World War, as described in Barbara Tuchman's The Guns of August. Judge Oberdorfer said: "I was thinking about that in terms of myself, and fantasized that I was a second lieutenant in the French Army, strolling on the Bois de Bologne, in the spring of 1914, not dreaming that, to mix metaphors, I would be squirming around in the mud of the Marne or the Somme or Verdon and get to my objective only to be machine gunned by the Court of Appeals." Judicial Conference of the U.S. Proceedings of the 48th Judicial Conference of the District of Columbia Circuit 150 (West 1987). Judge Oberdorfer's remarks take on a certain prophetic cast in light of today's disposition.


For judicial criticism of the Guidelines, see for example:

U.S. vs. Hill, 943 F.2d at 877 (8th Cir. 1991)(Heaney, J., concurring in part and dissenting in part)(arguing that doubling of sentence resulting from Guidelines' consideration of uncharged conduct violates due process);

U.S. vs. Davern, 937 F. 2d 1041, 1043-45, 1047 (6th Cir.1991)(Merritt, C.J.)(holding that Guideline procedure for determining sentencing range violates enabling statute' where Guidelines produce sentence "greater than necessary" to comply with purposes of sentencing, district court may depart freely), rehearing granted, decision and judgment vacated by Order(Sept. 26, 1991)

U.S. vs Pimentel, 932 F2d 1029, 10322-33 (2d Cir.1991)(Oakes, C.J.)(expressing concern that under Guidelines, defendants who plead guilty may be unaware of enhancements resulting from relevant conduct rules);

U.S. vs. Stanley, 928 F.2d 575, 583 (2d Cir.)(Feinberg, J.)(noting with concern transfer of discretion from district judge to prosecutor under Guidelines),cert/ denied.-U.S.-,

112 S.Ct. 141, 116 L.Ed.2d 108 (1991);

U.S. vs. Kikumura, 918 F.2d 1084, 1119 (3d Cir.1990)(Rosenn, J., concurring)(noting possible due process violation in Guidelines' transfer of power to prosecutor, which permits "manipulation of...charge and sentencing");

U.S. vs. Gutierrez, 908 F.2d 349, 354-55 (8th Cir.)(Heaney, J., dissenting)(arguing that government's unguided discretion in deciding whether to make 5K1.1 motion violates due process), vacated on rehearing en banc, 917 F.2d 379 (8th Cir. 1990);

U.S. vs. Allen, 873 F.2d 963, 966-67 (6th Cir. 1989)(Merritt, J., concurring)(finding Guidelines consistent with due process by concluding that they "should not be viewed as mandatory sentencing rules" and that district courts retain "wide range of discretion" to depart);

U.S. vs. Boshell, 728 F Supp. 632, 637-38, 641 (E.D. Wash.1990)(McNichols, C.J.)(holding Guidelines unconstitutional as applied and criticizing shift of discretion from judges to prosecutors);

U.S. vs. Roberts, 726 F.Supp. 1359, 1364-67 (D.D.C.1989)(Greene, J.)(holding Guidelines unconstitutional on due process grounds based upon transfer of unreviewable discretion to prosecutor),rev'd sub nom U.S. vs. Doe, 934 F.2d 353 (D.C.Cir.), cert. denied,-U.S.-,112 S.Ct. 268, 116 L.Ed.2d 221 (1991);

U.S. vs. Curran, 724 F.Supp. 1239, 1241 (C.D. Ill.1989) Mihm, J.)(striking 5K1.1 as unconstitutional on due process grounds), overruled by U.S. vs. Lewis, 896 F.2d 246 (7th Cir.1990);

U.S. vs. Rodriguez, 724 F.Supp. 1118, 1120-21 (S.D.N.Y.1989)(Leval, J.)(criticizing Guidelines lack of consideration of offender characteristics);

U.S. vs. Donatiu, 720 F.Supp. 619, 624 n. 2 (N.D. Ill.1989)(Rovner, J.)(characterizing Guidelines as "faulty legislation"), aff'd, 922 F.2d 1331 (7th Cir. 1991)

U.S. vs. Davis, 715 F.Supp.1473-1477-78 (C.D.Cal.1989)(Letts, J.)(holding Guidelines unconstitutional due to limitations on sentencing discretion), over-ruled by U.S. by U.S. vs. Wilson, 900 F.2d 1350 (9th Cir.1990);

U.S. vs. Alafriz, 690 F.Supp. 1303, 1310-11 (S.D.N.Y.1988)(Sweet, J.)(holding Guidelines unconstitutional as denying due process right to individualized sentence by judge), overruled by U.S. vs. Vizcaino, 870 F.2d 52 (2d Cir. 1989);

U.S. vs. Bogle, 689 F.Supp. 1121, 1163 (S.D.Fla.1988)(en banc)(Aronovitz, J., concurring)(finding Guidelines unconstitutional on due process grounds), overruled by U.S. vs. Perez-Garcia, 904 F 2d. 1534 (11th Cir.1990);

U.S. vs. Brittman, 687 F.Supp. 1329, 1349-54 (E.D.Ark.1988)(Eisele, C.J., writing for all judges of Eastern District except Judge Reasoner)(holding Guidelines unconstitutional due, in part, too transfer of sentencing discretion to prosecutors), rev'd, 872 F.2d 827 (8th Cir.), cert. denied, 493 U.S. 865, 110 S.Ct. 184, 107 L.Ed.2d 140 (1989);

U.S. vs. Ortega Lopez, 684 F.Supp. 1506, 1513 (C.D.Cal.1988)(en banc)(striking Guidelines as violative of right to individualized sentencing), overruled by U.S. vs. Brady, 895 F.2d 538 (9th Cir.1990);

U.S. vs. Frank, 682 F.Supp 815, 817-19 (W.D.Pa.)(Ziegler, J.)(same), rev'd, 864 F.2d 992 (3d Cir.1988). cert/ denied, 490 U.S. 1095. 109 S.Ct. 2442, 104 L.Ed.2d 998 (1989).

See also: JUDICIAL CONFERENCE OF THE UNITED STATES. Report of the Federal Courts Study Committee 133-40 (1990)(recommending repeal of mandatory minimum sentencing statutes and substantial reform of Guidelines): id. at 141 (additional statement by Judge Keep) ("The federal sentencing guidelines are not working. According to the legislative history, the goal of the guidelines was honesty, uniformity, and proportionality in sentencing.... The guidelines are failing miserably in achieving and of these goals.")

Ellsworth A. Van Graafeiland, Some Thoughts on the Sentencing Reform Act of 1984, 31 Vill.Re. 1291, 1293 (1986)("The consensus of most knowledgeable critics is that the Commissions's sentencing by the numbers approach is too depersonalized, too complicated, too punitive, and too burdensome of application.") id. at 1294 (predicting that Guidelines will "impose a massive additional burden on the courts, particularly at the appellate level")

SILBERMAN, Circuit Judge, dissenting:

I do not agree that presentence drug rehabilitation efforts may be considered under the rubric of "Acceptance of Responsibility," U.S.S.G. 3E1.1, so too justify a two-level offense reduction, Maj.Op. at 962 (quoting U.S. vs. Sklar, 920 F2d 107, 116 (1st Cir.1990)), may support further reduction under U.S.S.G. 5K2.0. I also disagree that Application Note 2 to section 3E1.1 permits acceptance of responsibility reductions for defendants such Harrington.

I would follow the Third and Ninth Circuits in concluding that U.S.S.G. 5H1.4-which states that "drug not a reason for imposing a sentence below the guidelines"-clearly indicates that the Sentencing Commission considered and rejected drug rehabilitation as a basis for downward departure. See U.S. vs. Martin, 938 F.2d 162, 1163 (9th Cir.1991); U.S. vs. Pharr, 916 F.2d 129, 132-33 (3d Cir.1990).

I cannot imagine that the Commission explicitly rejected the notion of drug dependence as a reason for downward departure without implicitly rejecting the companion concept of drug rehabilitation. After all, rehabilitation is not relevant unless one is dependent. See Martin, at 163; Pharr, 916 F.2d at 133. And the Commission's recommendation that addicted defendants be sentenced to supervised release with participation in drug treatment programs after incarceration, see U.S.S.G. 5H1.4, is a further indication that the Commission considered and rejected rehabilitation as a sentencing factor. See Martin, at 163.

The majority fails to confront section 2H1.4, merely stating without explanation that"the Commission has not squarely addressed the issue we face." Maj.Op. at 962 The district judge thought that the Commission's "rejection of addiction as a sentencing factor is no indication of its consideration of susceptibility to successful treatment for drug addiction," U.S. vs. Harrington, 741 F.Supp. 968, 976 (D.D.C.1990), which, as I indicate above, I think is fallacious. It is not clear to me whether the majority agrees or disagrees with the district judge on this point.

To be sure, the Third and Ninth Circuits have not decided that acceptance of responsibility reductions for drug rehabilitation are unavailable to defendants whose crimes are drug-related (the Third Circuit explicitly reserved the issue). But that the Commission rejected drug dependence-and therefore rehabilitation-as a sentencing factor under section 5H1.4, I think, forecloses this result. Moreover, even if the Commission had not rejected rehabilitation as a sentencing factor, I do not think drug rehabilitation fits within section 3E1.1. A defendant's participation in a drug treatment program does not evince his acceptance of responsibility for the crime he committed, even where-as here-that crime was distributing illegal drugs. Rather, it demonstrates only the defendant's desire to improve himself, see Pharr, 916 F.2d at 1332, and perhaps to obtain a lighter sentence.

The majority's holding permits, even encourages, the very "battles of experts" the majority wishes to avoid. Maj.Op. at 960 Leaving open the possibility for unlimited downward departure for "extraordinary" rehabilitation invites expert testimony as to whether the defendant's rehabilitation efforts are in fact exceptional-particularly since the majority does not define extraordinary rehabilitation.

Finally, the majority's reading of Application Note 2 as not precluding acceptance of responsibility reductions for defendants who, like Harrington, maintain their innocence and proceed to trial is dubious. The note make clear that defendants who put the government to its burden of proof will qualify for a reduction only "in rare situations>" U.S.S.G. 3E1.1 Application Note 2. Presentence drug rehabilitation efforts are anything but rare, as thee district court below recognized. See Transcript of Sentencing, June 27, 1990, at 11 (The Court:speaking to defendant Harrington:

If I do this..., and you don't keep on doing what you're doing now, you are going to ruin the chance not only for yourself but for thousands and thousand of people who might have a chance like yours...")

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