Case Number: 17-2024

Judge: Before: BATCHELDER, GIBBONS, and ROGERS, Circuit Judge

Court: UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUI

Plaintiff's Attorney: Joan E. Morgan

Defendant's Attorney: Mark Chasteen

Description: Duryane Chaney pleaded guilty to one count each of felon in
possession of a firearm and possession with intent to distribute cocaine. Because his criminal
No. 17-2024 Chaney v. United States Page 2
record included convictions for one “serious drug offense” and two “violent felon[ies],” Chaney
was sentenced as an armed career criminal, subject to the Armed Career Criminal Act’s fifteenyear mandatory minimum. 18 U.S.C. § 924(e)(1). On collateral review, Chaney argues that one
of his three predicate convictions—a 1981 Michigan conviction for attempted unarmed
robbery—does not qualify as a “violent felony” after the Supreme Court’s invalidation of the
ACCA’s residual clause in Johnson v. United States, 135 S. Ct. 2551 (2015) [hereinafter Johnson
II]. That claim fails, however, because Chaney’s conviction qualifies as an ACCA-enhancing
violent felony under the elements clause, which continues to apply notwithstanding Johnson II.
Michigan unarmed robbery (as it existed in 1981) counts as a violent felony under the ACCA’s
elements clause even though the statute extends to “putting [a victim] in fear,” because under
Michigan law “putting in fear” means “putting in fear of bodily injury from physical force.”
Chaney pleaded guilty to one count of felon in possession of a firearm, 18 U.S.C.
§ 922(g)(1).1
Although the base maximum sentence for that crime is ten years’ imprisonment, a
violator who has three prior convictions for a “violent felony” or “serious drug offense” is
subject to a fifteen-year mandatory minimum and a maximum sentence of life under the ACCA.
§ 924(e)(1). For purposes of this ACCA enhancement, a “violent felony” means a crime
punishable by more than one year in prison that
(i) has as an element the use, attempted use, or threatened use of physical force
against the person of another [the “elements clause”]; or

1Chaney waived his right to a grand jury indictment and entered a guilty plea, with a Rule 11 plea
agreement, to counts one and two of the First Superseding Information. Because the Information titled count one as
“18 U.S.C. §§ 922(g)(1), 924(e) – Felon in possession of a firearm; Armed Career Criminal,” it might appear that
Chaney pleaded guilty to two separate things. This odd construction of the charge warrants clarification.
The former provision, § 922(g)(1) (felon in possession of a firearm), is a criminal offense, to which an
accused must plead, and to which Chaney pleaded guilty in this case. But the latter provision, § 924(e)(1) (armed
career criminal), is not a criminal offense; it is a sentencing enhancement that applies to certain qualifying
defendants convicted under § 922(g). Because § 924(e)(1) does not create a separate offense or require a pleading—
and would not require submission to a jury—it was neither necessary nor meaningful that Chaney “pleaded guilty”
to a § 924(e)(1) charge. See United States v. Mack, 229 F.3d 226, 231 (3d Cir. 2000); United States v. Henry,
933 F.2d 553, 558 (7th Cir. 1991); United States v. Affleck, 861 F.2d 97, 99 (5th Cir. 1988).
Just as Chaney could not avoid application of § 924(e)(1) based on the absence of a “conviction” on that
charge (by guilty plea or jury determination), he is not prohibited here from challenging the application of
§ 924(e)(1) at his sentencing hearing based on the unusual fact that he was charged with and pleaded guilty to a
§ 924(e)(1) charge as part of count one.
No. 17-2024 Chaney v. United States Page 3
(ii) is burglary, arson, or extortion, involves use of explosives [the “enumerated
crimes clause”], or otherwise involves conduct that presents a serious potential
risk of physical injury to another [the “residual clause”].
18 U.S.C. § 924(e)(2)(B)(i)–(ii).
Chaney objected at sentencing to the ACCA enhancement on the grounds that his
1981 Michigan conviction for attempted unarmed robbery was not a “violent felony” because it
resulted in less than one year of imprisonment and did not, in his particular case, involve the use
of “physical force.” The Government countered that a crime qualifies under the ACCA so long
as it is punishable by more than one year in prison—regardless of the sentence handed down—
and that Michigan unarmed robbery categorically qualifies as a violent felony, citing United
States v. Mekediak to the sentencing court. Mekediak had held that Michigan “unarmed robbery
categorically creates a sufficiently comparable risk of injury to another as the risk posed by
burglary,” and thus “is a crime of violence for the purposes of [the] ACCA.” 510 F. App’x 348,
354 (6th Cir. 2013), abrogation recognized by Shuti v. Lynch, 828 F.3d 440, 448 (6th Cir. 2016).
The district court concluded that the “government [was] absolutely right,” adding, “and of
course, a conviction for attempted unarmed robbery does involve the attempted use or threatened
use of physical force. So it qualifies.” Chaney was sentenced as an armed career criminal.
More than a year later, Chaney brought (and later amended) a § 2255 motion to vacate
his sentence on the ground that he no longer qualified as an armed career criminal after the
Supreme Court in Johnson II invalidated the ACCA’s residual clause as unconstitutionally
vague. 135 S. Ct. at 2563. With the residual clause effectively erased, Chaney argued that his
1981 Michigan conviction for attempted unarmed robbery is not a predicate violent felony
because robbery is not an enumerated offense, 18 U.S.C. § 924(e)(2)(B)(ii), and does not “ha[ve]
as an element the use, attempted use, or threatened use of physical force against the person of
another,” § 924(e)(2)(B)(i), as required by the elements clause. The district court, however, read
the statute differently. In 1981, Michigan unarmed robbery was defined as follows:
Any person who shall, by force and violence, or by assault or putting in fear,
feloniously rob, steal and take from the person of another, or in his presence, any
money or other property which may be the subject of larceny, such robber not
being armed with a dangerous weapon, shall be guilty of a felony, punishable by
imprisonment in the state prison not more than 15 years.
No. 17-2024 Chaney v. United States Page 4
Mich. Comp. Laws § 750.530 (1981). Relying on our unpublished opinion in United States v.
Mathews, 689 F. App’x 840 (6th Cir. 2017), the district court held that the Michigan statute
(even as applied to attempt) required the use, attempted use, or threatened use of “physical
force,” so as to qualify as an ACCA-enhancing “violent felony” under the elements clause.
Accordingly, the court denied Chaney’s motion to vacate his sentence.
As a threshold matter, the Government argues that Chaney’s claim is procedurally
improper because—despite its masquerading as a Johnson II residual-clause claim—it actually
turns on the Court’s earlier decision in Johnson v. United States, 559 U.S. 133 (2010)
[hereinafter Johnson I], interpreting the degree of force required by the “elements clause.” But a
petitioner may bring a Johnson II claim challenging his status as an armed career criminal in a
first § 2255 motion, like this one, so long as the sentencing court might have relied on the
residual clause to enhance the sentence under the ACCA. See Raines v. United States, 898 F.3d
680, 685–86 (6th Cir. 2018) (per curiam).
Although it is true that Johnson II “does not reopen all sentences increased by [the
ACCA],” see Potter v. United States, 887 F.3d 785, 787 (6th Cir. 2018), we have rejected the
Government’s implied premise that a first-time § 2255 movant must show that the sentencing
court relied only on the residual clause in order for the movant to bring a Johnson II claim, see
Raines, 898 F.3d at 684–86. Where it is unclear which ACCA clause a court relied on to
enhance a sentence, a first-time § 2255 movant may use Johnson II to collaterally attack his
ACCA enhancement by showing that the sentencing court might have relied on the residual
clause. See Raines, 898 F.3d at 685–86.
Here, Chaney has shown just that. As in many pre-Johnson II cases, the sentencing judge
did not specify which ACCA clause it relied on in deeming Michigan attempted unarmed
robbery a violent felony. The Government’s own arguments at sentencing, however, suggest that
it and the court were looking to the residual clause. At sentencing, the Government cited only
Mekediak, 510 F. App’x at 354, in support of the enhancement—a case expressly relying on the
residual clause. That the only enhancement-supporting authority before the district court relied
on the residual clause strongly suggests that the district court did too. On the other hand, the
court did state that the conviction “involve[s] the attempted use or threatened use of physical
No. 17-2024 Chaney v. United States Page 5
force,” which tracks the language of the elements clause. But it is difficult to read too much into
that off-the-cuff statement without any indication that the court conducted a statutory analysis.
What’s more, the district court below—the same to sentence Chaney—gave no indication that it
relied on anything but the residual clause in sentencing Chaney. This record shows that Chaney
at least might have been sentenced under the residual clause. Compare Raines, 898 F.3d at 686,
with Potter, 887 F.3d at 787–88.
Having cleared that procedural hurdle, Chaney must survive another. For the first time
on appeal the Government argues that Chaney procedurally defaulted his claim by failing to
argue on direct review that his conviction did not satisfy the elements clause. In other words, the
Government would have us fault Chaney for not making an argument that would have had no
practical effect whatsoever given the then-viable residual clause. That would be a harsh outcome
under any circumstances, and only more so here because the Government concedes that it has
forfeited its own argument by failing to raise it before the district court. The Government asks us
to look past its oversight because it was busy litigating other Johnson II claims at the time. But
even if the Government’s excuse of practical burden might fly in another context, we will not
excuse the Government’s forfeiture on that basis here only to hold Chaney’s claim procedurally
defaulted for his failure to raise a claim that would have had no practical effect. The
Government has, therefore, forfeited any defense of procedural default.
On the merits, Chaney’s 1981 Michigan conviction for attempted unarmed robbery is
categorically a violent felony under the ACCA’s elements clause. The operative Michigan
statute punishes theft committed “by force and violence, or by assault, or putting in fear.” Mich.
Comp. Laws § 750.530 (1981). Each of these alternatives meets the requirements of the
elements clause, notwithstanding Chaney’s arguments that “putting in fear” or “force and
violence” permits conviction without necessarily requiring the “use, attempted use, or threatened
use of physical force” as required by that clause. See 18 U.S.C. § 924(e)(2)(B)(i). As defined in
Johnson I, “physical force” means “violent force—that is, force capable of causing physical pain
or injury to another person.” 559 U.S. at 140; see also Stokeling v. United States, 139 S. Ct. 544,
553 (2019).
No. 17-2024 Chaney v. United States Page 6
As we held in United States v. Mathews, “putting in fear” under the statute requires the
use or threatened use of physical force as defined in Johnson I. 689 F. App’x at 844–46. That is
because, as explained in Mathews, the best guidance from the Michigan Supreme Court is that
Michigan law requires a “reasonable belief that [the victim] may suffer injury unless he complies
with the demand.” Id. (quoting Michigan v. Kruper, 64 N.W.2d 629, 632 (Mich. 1954)); see also
Michigan v. Hearn, 406 N.W.2d 211, 214 (Mich. Ct. App. 1987).
In Michigan v. Randolph, the Michigan Supreme Court held that “Michigan’s unarmed
robbery statute is derived from the common law,” and indeed “adopted the common-law
definition of robbery.”2
648 N.W.2d 164, 167 (Mich. 2002), superseded by statute, P.A. 2004,
No. 128, as recognized in Michigan v. March, 886 N.W.2d 396 (Mich. 2016). Michigan’s
codification of common law robbery is significant because the Michigan Supreme Court
interpreted the common law (and thus Michigan’s statute) to require “the felonious and forcible
taking, from the person of another, of goods or money to any value by violence or putting him in
fear.” See id. (quoting 4 Blackstone, Commentaries, Public Wrongs, ch. 17, 241). In so
interpreting the common law, the Randolph court relied on sources that repeatedly equated
“putting in fear” with putting a person in fear of immediate injury. See id. at 167–168, 167 n.6
(“Feloniously taking the property of another in his presence and against his will, by putting him
in fear of immediate personal injury, is robbery at common law.” (quoting Rapajle, Larceny
& Kindred Offenses § 445 (1892)) (emphasis added)). Because Michigan unarmed robbery
codifies common law robbery, and common law robbery, as understood by the Michigan
Supreme Court, requires putting the victim in fear of immediate personal injury, Michigan’s
unarmed robbery statute must be read to require the same.
This court has held that a state robbery statute that requires “putting in fear” qualifies as a
violent felony under the elements clause when state law interprets “fear,” as it does here, to mean
“fear of bodily injury from physical force offered or impending.” See United States v. Mitchell,

2The Michigan unarmed robbery statute was amended in 2004. See Mich. Comp. Laws § 750.530 (2004).
Because Chaney was sentenced under the earlier statute, our analysis is confined to that version of the statute, as was
effective in 1981.
No. 17-2024 Chaney v. United States Page 7
743 F.3d 1054, 1059 (6th Cir. 2014) (Tennessee robbery). Thus, the “putting in fear” clause here
too satisfies the elements clause.
The “force and violence” alternative also satisfies the elements clause, notwithstanding
Chaney’s argument that the Michigan statute criminalizes “force and violence” less than the
“physical force” needed to satisfy the ACCA. Johnson I defines “physical force” as “violent
force,” 559 U.S. at 140, and the plain text of the Michigan statute required “force and violence,”
Mich. Comp. Laws § 750.530 (1981). Of course, that does not by itself dictate that Michigan’s
“force and violence” must mean exactly the same as Johnson I’s “violent force,” but there is not
a lot of interpretive daylight between them. Despite their similarity, Chaney tries to drive a
definitional wedge between those phrases by citing two Michigan intermediate appellate
decisions and Michigan jury instructions suggesting that, at least for assault, “the words ‘force
and violence’ mean any use of physical force against another person so as to harm or embarrass
him.” See Mich. Crim. Jury Instr. 2d 17.14. In Michigan v. Chandler, for instance, the court
cited Michigan Criminal Jury Instruction 17.14 to that effect, but did so to interpret an assault
statute and, even then, only to note that “force and violence” requires “physical force.”
506 N.W.2d 882, 884 (Mich. Ct. App. 1993). Similarly inapposite, Michigan v. Boyd held that
throwing urine into the face of another constituted the use of “violence” for purposes of assault
of a corrections officer.3
300 N.W.2d 760, 762 (Mich. Ct. App. 1980). These examples are
outside of the robbery context and therefore of little import here.
We assume that if Michigan unarmed robbery could be accomplished by merely using
physical force to embarrass the victim, then it would fall outside of the ACCA. But it takes far
too active an imagination to dream up a scenario in which a person could steal someone’s
property by touching the victim in a harmless and non-threatening but embarrassing way. The
categorical approach’s “focus on the minimum conduct criminalized by the state statute is not an

3Chaney also cites Michigan v. Passage, 743 N.W.2d 746, 748 (Mich. 2007), to suggest that Michigan law
requires only minimal force, but that decision interpreted an amended version of the statute that changed “force and
violence” to “force or violence” in an intentional move away from the narrower definition at common law. As
explained in United States v. Harris, the amended statute requires less force than the 1981 version Chaney was
convicted under and the “Legislature’s decision to replace the word ‘and’ with the word ‘or’ in the 2004
amendments evidences its changed intent to include theft by force but without violence as an unarmed robbery.”
323 F. Supp. 3d 944, 948 (E.D. Mich. 2018). Chaney’s reliance on Passage is therefore misplaced.
No. 17-2024 Chaney v. United States Page 8
invitation to apply ‘legal imagination’ to the state offense.” Moncrieffe v. Holder, 569 U.S. 184,
191 (2013).
As explained in Randolph, it is not enough under Michigan law that force and violence be
used at some point during the theft; the force and violence (or threat of such) must be the act that
is used to accomplish the taking. See 648 N.W.2d at 173. This distinction is key and separates
unarmed robbery here from, for example, plain assault or the battery statute at issue in Johnson I.
For battery, the offensive or embarrassing touching is itself the crime, whereas that same
harmless touch would somehow have to deprive the victim of property to amount to robbery.
One can imagine a robbery involving an offensive or embarrassing touch coupled with a threat—
implicit or otherwise—of harm for noncompliance. But it strains the imagination to think
someone could steal property through an offensive or embarrassing touch alone.
Even if a more creative mind could imagine such a scenario, there must be a “realistic
probability, not a theoretical possibility, that [Michigan] would apply its statute to conduct that”
is less than violent force, for the conviction to fall outside of the elements clause. See Gonzales
v. Duenas-Alvarez, 549 U.S. 183, 193 (2007); Perez v. United States, 885 F.3d 984, 990 (6th Cir.
2018). Chaney has not pointed to any Michigan case that applied the statute to nonqualifying
force and thus has not shown that realistic probability. See Duenas-Alvarez, 549 U.S. at 193.
The two cases Chaney cites purporting to interpret “force and violence” do so in the context of
assault statutes. Again, the court in Boyd affirmed a conviction for assault of a prison employee.
300 N.W.2d at 762. Although the Chandler case did, after addressing the assault statute at issue,
go on to find sufficient evidence of attempted unarmed robbery, it did so based on a clear threat
of violent force—namely, the defendant’s threat to “blow [the victim’s] head off” if he didn’t get
out of the car. See Chandler, 506 N.W.2d at 885. The Chandler court’s only discussion of
“force and violence” was dicta regarding an assault-with-intent-to-rob statute and has no bearing
here. See id. at 884.
The cases most on point strongly suggest that robbery requires violent force and that a
theft without such force would more realistically be charged as larceny from the person, a lesser
offense than robbery. See Mich. Comp. Laws §750.357 (1981). “The larceny-from-the-person
statute punishes pickpockets, purse- and wallet-snatchers, and others who invade the person or
No. 17-2024 Chaney v. United States Page 9
‘immediate presence’ of the victim to accomplish a theft.” Michigan v. Smith-Anthony,
821 N.W.2d 172, 175 (Mich. Ct. App. 2012), aff’d, 837 N.W.2d 415 (Mich. 2013). “What
separates robbery from larceny from the person is violence or the threat of violence.” Michigan
v. Gould, 166 N.W.2d 530, 533–34 (Mich. Ct. App. 1968), aff’d in part, rev’d in part on other
grounds, 179 N.W.2d 617 (Mich. 1970). Having failed to identify a single Michigan case
affirming a conviction for unarmed robbery involving “force and violence” less than the
minimum “violent force” required by Johnson I, Chaney has not shown a realistic probability
that Michigan would apply its statute to such conduct.
Also, for this reason, this case is distinguishable from cases such as United States v.
Yates, 866 F.3d 723, 728–32 (6th Cir. 2017), where the state supreme court had clearly
interpreted a state robbery statute to punish conduct that was held not to rise to violent force
under the ACCA’s elements clause.
Moreover, the statutory history and underpinnings of the ACCA support the conclusion
that Michigan unarmed robbery qualifies under the elements clause, as both statutes trace their
roots to common law robbery. See Stokeling, 139 S. Ct. at 549–52. As originally enacted in
1984, the ACCA listed only two predicate offenses—robbery and burglary. See Pub. L. 98-473,
§ 1802, 98 Stat. 2185, 18 U.S.C.App. § 1202(a) (1982 ed. and Supp. II).4
The definition of
robbery in that version of the ACCA was drawn directly from the common law: “‘robbery’
means any felony consisting of the taking of the property of another from the person or presence
of another by force or violence, or by threatening or placing another person in fear that any
person will imminently be subjected to bodily injury.” See id. § 1803(2); Stokeling, 139 S. Ct. at
550–51. That definition not only encompasses Michigan unarmed robbery, but is nearly
identical to it, and for good reason: they are both drawn from the common law. Compare
§ 1803(2), and Stokeling, 139 S. Ct. at 550–51, with Mich. Comp. Laws § 750.530 (1981). Two
years later, Congress “expanded the predicate offenses triggering the sentence enhancement from
‘robbery or burglary’ to ‘a[ny] violent felony.’” See Taylor v. United States, 495 U.S. 575, 582
(1990). Congress did so to promote “a greater sweep and more effective use of this important

4
In 1986, § 1202 was recodified as 18 U.S.C. § 924(e) by the Firearms Owners’ Protection Act, Pub. L.
99-308, § 104, 100 Stat. 458.
No. 17-2024 Chaney v. United States Page 10
statute.” See id. at 583 (quoting 132 Cong. Rec. 7697 (1986)). In doing so, it used the sine qua
non of common law robbery—“force or violence”—as the basis for the definition of a violent
felony: a crime punishable by more than one year’s imprisonment that “has as an element the
use, attempted use, or threatened use of physical force against the person of another.” See
18 U.S.C. § 924(e)(2)(B)(i). Were Chaney correct that Michigan unarmed robbery is not a
violent felony, we would have to read Congress’s expansion of the ACCA predicates from
common law robbery to all violent felonies to somehow exclude Michigan’s codification of
common law robbery. That tortured reading has nothing to recommend it. “By retaining the
term ‘force’ in the [amended] version of [the] ACCA and otherwise ‘expanding’ the predicate
offenses under [the] ACCA, Congress made clear that the ‘force’ required by common-law
robbery would be sufficient to justify an enhanced sentence under the new elements clause.”
Stokeling, 139 S. Ct. at 551.
Furthermore, treating Michigan unarmed robbery as an ACCA predicate under the
elements clause accords with decisions by two of our sister circuits holding that Michigan
unarmed robbery is a violent felony under the ACCA. The Eighth Circuit in United States v.
Lamb similarly relied on Randolph to hold as much. See 638 F. App’x 575, 577 (8th Cir. 2016),
vacated on other grounds by 137 S. Ct. 494 (2016); see also United States v. Tirrell, 120 F.3d
670, 680 (7th Cir. 1997). Those decisions also accord with decisions from this and other circuits
interpreting other common-law-derived robbery statutes in the same way. See, e.g., United
States v. Priddy, 808 F.3d 676, 686 (6th Cir. 2015) (Tennessee robbery), abrogated on other
grounds by United States v. Stitt, 860 F.3d 854 (2017) (en banc), decision reversed on other
grounds, 139 S. Ct. 399 (2018); United States v. Harris, 844 F.3d 1260, 1268–70 (10th Cir.
2017) (Colorado robbery); United States v. Doctor, 842 F.3d 306, 308–12 (4th Cir. 2016) (South
Carolina robbery); United States v. Duncan, 833 F.3d 751, 754–58 (7th Cir. 2016) (Indiana
robbery).
Without addressing these cases, Chaney points to cases construing dissimilar state
robbery statutes to fall outside of the ACCA’s reach. But, even assuming they survive Stokeling,
139 S. Ct. at 554–55, those cases are easily distinguishable—in each, state decisional law was
found to provide that, unlike at common law or in Michigan, no more than de minimis force was
No. 17-2024 Chaney v. United States Page 11
required for robbery. See, e.g., United States v. Winston, 850 F.3d 677, 684–85 (4th Cir. 2017)
(Virginia robbery); United States v. Geozos, 870 F.3d 890, 900–01 (9th Cir. 2017) (Florida
robbery); United States v. Nicholas, 686 F. App’x 570, 574–76 (10th Cir. 2017) (Kansas
robbery); United States v. Gardner, 823 F.3d 793, 803–04 (4th Cir. 2016) (North Carolina
robbery); United States v. Parnell, 818 F.3d 974, 978–80 (9th Cir. 2016) (Massachusetts armed
robbery); United States v. Eason, 829 F.3d 633, 640–42 (8th Cir. 2016) (Arkansas robbery).
Finally, Chaney argues that, even if Michigan unarmed robbery qualifies as a violent
felony, Michigan attempted unarmed robbery does not. But the ACCA’s elements clause
expressly includes the “attempted use” of “physical force.” See 18 U.S.C. § 924(e)(2)(B)(i).
Despite that straightforward reading, Chaney argues that Michigan’s attempt statute must
equal the generic definition of attempt—intent to commit the underlying offense and a
“substantial step” towards commission—to satisfy the elements clause’s “attempted use”
requirement. Chaney cites no binding authority for that point, but even if we were to require that
Michigan’s attempt statute must satisfy the generic definition of attempt, it does. Under
Michigan law, attempt requires intent and an overt action “more than mere preparation to
commit the crime,” which “would lead immediately to the completion of the crime had the
defendant not failed in the perpetration, or been intercepted or prevented in the execution of the
same.” See Michigan v. Burton, 651 N.W.2d 143, 150 (Mich. Ct. App. 2002) (internal quotation
marks omitted).
Moreover, the attempt factor is applied only to the first element of unarmed robbery—the
felonious taking—not the force element. See Michigan v. Gardner, 265 N.W.2d 1, 5 n.1 (Mich.
1978). That is, the only difference between unarmed robbery and attempted unarmed robbery is
whether the perpetrator is successful in taking the property—the same degree of “force and
violence, assault, or putting in fear” is needed in both cases. See Tirrell, 120 F.3d at 680–81.
Thus, it makes no difference that Chaney was convicted for attempted unarmed robbery.
Michigan attempted unarmed robbery, as it existed in 1981, is a violent felony under the
ACCA’s elements clause.

Outcome: For these reasons, the judgment of the district court is affirmed.

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