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Date: 12-10-2021

Case Style:

United States of America v. Hector Uriarte

Case Number: 19-2092

Judge: Kenneth Francis Ripple

Court:

United States Court of Appeals For the Seventh Circuit
On appeal from The United States District Court for the Northern District of Illinois, Eastern Division

Plaintiff's Attorney: United States Attorney’s Office

Defendant's Attorney:


Chicago, IL - Best Criminal Defense Lawyer Directory


Description:

Chicago, IL - Criminal defense lawyer represented defendant with racketeering, drug crimes, and two counts of using a firearm to commit a kidnapping charge.



Hector Uriarte was a member of a gang that conspired to
kidnap and rob drug dealers for money and drugs. He was
indicted for, and convicted of, several federal offenses,
including racketeering, drug crimes, and two counts of using
a firearm to commit a kidnapping in violation of 18 U.S.C.
§ 924(c). A conviction for a single count of using a firearm to
commit a crime of violence like kidnapping carries a
mandatory minimum penalty of five years’ imprisonment.
No. 19-2092 3
Id. § 924(c)(1)(A)(i). That mandatory minimum is elevated to
seven years if the firearm was “brandished” during the
course of the crime. Id. § 924(c)(1)(A)(ii).
Before the First Step Act, a second violation of § 924(c)
triggered a much higher 25-year mandatory minimum, even
if the two counts were asserted in a single indictment. The First
Step Act amended § 924(c) so that only a second § 924(c)
violation committed after a prior conviction for the same
offense will trigger the 25-year minimum. First Step Act
§ 403(a); see United States v. Davis, 139 S. Ct. 2319, 2324 n.1
(2019).
At the time of Mr. Uriarte’s sentencing in 2013, the
district court calculated that he was subject to a mandatory
minimum of 42 years’ imprisonment: 10 years from the
various racketeering and drug charges, 7 years for the first
firearm offense because the court determined that it had
involved brandishing a weapon, and 25 years for the second
firearm offense. The court sentenced Mr. Uriarte to 50 years
in prison, a sentence above the mandatory minimum but
well below the Guidelines recommendation.
Along with several codefendants, Mr. Uriarte appealed
his convictions and sentence. Cardena, 842 F.3d 959. Among
other arguments, we reviewed a challenge to his sentence
based on the Supreme Court’s decision in Alleyne v. United
States, 570 U.S. 99 (2013). Alleyne held that brandishing is an
element of the § 924(c) offense that must be found by a jury.
In Mr. Uriarte’s case, the court rather than the jury had
found the element of brandishing. Cardena, 842 F.3d at 1000–
02. We therefore vacated his sentence and remanded so that
4 No. 19-2092
Mr. Uriarte could be resentenced without the brandishing
enhancement for the first firearm offense.1

At the time of the enactment of the First Step Act,
Mr. Uriarte was a convicted, but unsentenced, federal
defendant. When the time for his sentencing arrived, he
asked the district court to apply § 403 of the Act. The court
agreed, and over the Government’s objection, it sentenced
him under the provisions of the First Step Act. As
Mr. Uriarte’s second firearm offense no longer triggered a
25-year mandatory minimum, the court sentenced him to 20
1 Specifically, in United States v. Cardena, we concluded that, in light of
Alleyne v. United States, 570 U.S. 99, 103 (2013), Mr. Uriarte was
“improperly subjected to a 7-year mandatory minimum on count 8 for
brandishing a firearm where the jury only convicted [him] of using or
carrying a firearm.” 842 F.3d 959, 1000 (7th Cir. 2016). We explained that,
when sentencing Mr. Uriarte, “the district court departed downward
from life to 18 years and then imposed the consecutive 7-year and
25-year mandatory minimums, for a total term of 50 years’
imprisonment. Because the mandatory minimum of 7 years went into the
district court’s determination of [Mr. Uriarte’s] ultimate sentence[], we
cannot say that the Alleyne error was harmless.” Id. at 1001.
We further noted that the case was “unusual because it is not often
that the guidelines range is only life imprisonment.” Id. Thus, in order to
identify “a lower bracket for purposes of deciding what sentence to
give” Mr. Uriarte, the district court “treat[ed] the mandatory minimum”
as that “lower bracket.” Id. at 1001–02. The Government had argued in
Cardena that the Alleyne error “‘had absolutely no effect’” on the district
court’s calculation of Mr. Uriarte’s sentence because the sentence was
“above the mandatory minimum.” Id. at 1001 (citation omitted). We
rejected this argument because the district court had “in effect” used the
mandatory minimum as the starting point in its calculation. Id. at 1001.
We held that Mr. Uriarte was therefore “entitled to resentencing.” Id. at
1002.
No. 19-2092 5
years’ imprisonment based on its recalculation of the
mandatory minimum: 10 years for the various drug and
racketeering offenses, 5 years for the first firearm offense
without the brandishing enhancement, and 5 years for the
second firearm offense.2
The Government now appeals
Mr. Uriarte’s new sentence.
2 The actions of both the district court and the parties reflect the
understanding that our remand in Cardena was for a plenary
resentencing. Our instructions in Cardena, read in light of our settled law,
make clear that the remand was for a full, or plenary, resentencing.
As a general matter, we have distinguished three types of remand.
United States v. Simms, 721 F.3d 850, 852 (7th Cir. 2013). The two more
limited remands are (1) those in which “the appellate court seeks a ruling
or advice from the trial court and[,] pending its receipt of that ruling or
advice[,] retains jurisdiction over the appeal,” and (2) those in which “the
appellate court returns the case to the trial court but with instructions to
make a ruling or other determination on a specific issue or issues and do
nothing else.” Id. (emphasis added). Cardena does not implicate either of
these limited remands.
In the third and “most common form of remand,” the “general
remand[,] the appellate court returns the case to the trial court for further
proceedings consistent with the appellate court’s decision, but
consistency with that decision is the only limitation imposed by the
appellate court.” Id. Moreover, we have noted that, when we disturb one
aspect of a sentencing package, our preference is for a full resentencing:
Because a criminal sentence is normally a package that
includes several component parts (term of
imprisonment, fine, restitution, special assessment,
supervised release), when one part of the package is
disturbed, we prefer to give the district court the
opportunity to reconsider the sentence as a whole so as
to “effectuate its sentencing intent.” Pepper v. United
States, 562 U.S. 476, 507 (2011). Vacating the sentence
(continued … )
6 No. 19-2092
( … continued)
and returning the case to the district court for imposition
of a new sentence allows the district court to
“reconfigure the sentencing plan” so as to “satisfy the
sentencing factors in 18 U.S.C. § 3553(a).” Id.
United States v. Mobley, 833 F.3d 797, 801 (7th Cir. 2016).
“[I]t is possible in some cases for us to reverse and remand on certain
issues and yet not unbundle the package.” United States v. Smith, 103 F.3d
531, 534 (7th Cir. 1996). “In other cases,” however, “our action may likely
undermine the entire sentencing intent of the district judge. In the latter
cases, full resentencing is appropriate.” Id.
Both the language that we employed in our Cardena remand, and the
nature of the error that formed the basis of Mr. Uriarte’s initial
sentencing, point clearly to the conclusion that our remand required
plenary resentencing. In Cardena, we stated: “We VACATE the sentence[]
of … Hector Uriarte on count 8 and REMAND for resentencing
consistent with this opinion.” 842 F.3d at 1002. This broad language
mandates a complete resentencing. See United States v. Young, 66 F.3d
830, 836 (7th Cir. 1995) (stating that the language, “‘[w]e therefore vacate
the district court’s sentence and remand the case for resentencing
consistent with this opinion’” was “broad,” and that the language, we
“‘vacate[] and the case [is] remanded for resentencing on the issue of
obstruction of justice’” was “limited” (emphasis added)). Additionally, the
district court had structured Mr. Uriarte’s sentence on the basis of an
Alleyne error, and we determined that it was impossible to “unbundle”
this error from the rest of his sentence. Cardena, 842 F.3d at 1001–02
(noting that the district court used the mandatory minimum as the
starting point of its calculation); see also United States v. White, 406 F.3d
827, 832 (7th Cir. 2005) (“We recognize that in a sentencing
determination potential enhancements are inter-connected and the
district court’s original sentencing intent may be undermined by altering
one portion of the calculus.”); cf. Pepper, 562 U.S. at 507) (“[A]n appellate
court when reversing one part of a defendant’s sentence ‘may vacate the
entire sentence.’” (quoting Greenlaw v. United States, 554 U.S. 237, 253
(continued … )
No. 19-2092 7
II
DISCUSSION
A.
Mr. Uriarte’s case presents a straightforward factual
situation and an equally straightforward legal issue for our
resolution.
At the time of the enactment of the First Step Act,
Mr. Uriarte was a convicted, but unsentenced, federal
defendant. He was awaiting sentencing. An earlier
sentencing proceeding, conducted before the enactment of
the First Step Act, had resulted in a sentence that we decided
could not stand. We vacated that sentence, rendering it a
nullity, and directed the district court to resentence
Mr. Uriarte. See Cardena, 842 F.3d at 1000–02; Pepper v. United
States, 562 U.S. 476, 508 (2011) (Vacatur “wipe[s] the slate
clean.”); United States v. Barnes, 948 F.2d 325, 330 (7th Cir.
1991) (“[T]he effect of the order to vacate was to nullify
[Mr. Uriarte’s] sentence.”). While Mr. Uriarte was awaiting
sentencing, Congress enacted the First Step Act.
The Act’s language is also quite simple. Congress
amended the law so that contemporaneous § 924(c)
convictions no longer trigger a 25-year mandatory minimum
sentence. First Step Act of 2018, § 403(a), Pub. L. No. 115-391,
132 Stat. 5194, 5221–5222 (Dec. 21, 2018). The cases to which
the amendment applies are set forth in § 403(b), which states:
( … continued)
(2008))). Thus, our remand in Cardena required that the district court
conduct a plenary resentencing.
8 No. 19-2092
APPLICABILITY TO PENDING CASES.—This
section, and the amendments made by this
section, shall apply to any offense that was
committed before the date of enactment of this
Act, if a sentence for the offense has not been
imposed as of such date of enactment.
When Congress drafted this language, it departed explicitly
from the usual rule that criminal sentencing statutes are
applicable only to crimes committed after the effective date
of the statute. See Dorsey v. United States, 567 U.S. 260, 272–73
(2012) (explaining the default rule that, pursuant to the
federal saving statute, 1 U.S.C. § 109, the reduced penalties
of a criminal statutory amendment are generally not
applicable to offenses committed before the statute was
enacted).
Congress thereby ensured that all individuals awaiting
sentencing in the United States courts on the effective date of
the Act would be sentenced in accord with the policy
decisions it had just made. To accomplish this goal,
Congress made no distinction between defendants who had
never been sentenced and those whose sentence had been
vacated fully and who were awaiting the imposition of a
new sentence. In this way, Congress stanched, to the degree
that it could without overturning valid and settled
sentences, the mortmain effect of sentencing policies that it
considered no longer in the Nation’s best interest. It ensured,
moreover, all persons awaiting sentencing on the effective
date of the Act would be treated equally, a value long
cherished in our law. Id. at 276–77.
This interpretation is both straightforward and
compatible with the purpose of the First Step Act. We begin
No. 19-2092 9
with the language at issue here: “if a sentence for the offense
has not been imposed as of such date of enactment.”
§ 403(b). Congress writes statutes against the backdrop of
the existing legal landscape. The Supreme Court has
reminded us that our “elected representatives, like other
citizens, know the law.” Cannon v. Univ. of Chi., 441 U.S. 677,
696–97 (1979). When Congress crafted this statutory
language, it well understood that vacating a sentence
“wipe[s] the slate clean.” Pepper, 562 U.S. at 508; see also
United States v. Mobley, 833 F.3d 797, 802 (7th Cir. 2016)
(“When we vacate a sentence and order a full remand, the
defendant has a ‘clean’ slate—that is, there is no sentence
until the district court imposes a new one.”). We presume
that Congress is aware of the established meaning of legal
terms. NLRB v. Amax Coal Co., 453 U.S. 322, 329 (1981)
(“Where Congress uses terms that have accumulated settled
meaning under either equity or the common law, a court
must infer, unless the statute otherwise dictates, that
Congress means to incorporate the established meaning of
these terms.”).
Here, Congress has not given any indication that it
intended to depart from settled principles. See Chambers v.
NASCO, Inc., 501 U.S. 32, 47 (1991). Therefore, we read
§ 403(b) against the background principle that a court
resentences “on a clean slate.” Krieger v. United States, 842
F.3d 490, 505 (7th Cir. 2016). Nothing in the text of the
statute suggests that Congress intended to create an
exception to the ordinary effect of the vacatur of a sentence.
Indeed, it is clear that the statute reflects a congressional
intention that its policy decision apply to both pre-Act
offenders who have never been sentenced and to pre-Act
offenders whose sentences had been vacated before the date
10 No. 19-2092
of enactment, but who had not been resentenced as of that
date. 3
Whether an unsentenced defendant falls into one group
or the other, he lacks a sentence. The statutory language
makes clear that, on sentencing day, both should be treated
under the same congressional policy.
B.
Despite this straightforward application of the text,
which is compatible with the statute’s manifest remedial
purpose, it is possible, to borrow a phrase from Lewis
Carroll, to take select words of the statute and “pay them
extra”4
to come up with a plausible alternative reading. This
approach introduces a significant amount of ambiguity and
internal contradiction into the basic interpretative inquiry.
Let us see why this alternative approach falls on its own
sword.
We could take the phrase “a sentence … has not been
imposed,” § 403(b), and read it—as the Government
proposes—as referring to the sentence that we held null and
3 Although Mr. Uriarte, who was sentence-less when the First Step Act
was enacted, falls neatly within the statute’s language, the same would
not be true for a defendant who was under a sentence at the time of
enactment, but subsequently had his sentence vacated. Nevertheless,
that scenario is not before us.
4 Lewis Carroll, Through a Looking-Glass and What Alice Found There 133
(Boston, Thomas Y. Crowell & Co. 1893) (“‘When I make a word do a lot
of work like that,’ said Humpty Dumpty, ‘I always pay it extra.’”). When
applying plain-meaning methodology, one should not have to pay
words extra.
No. 19-2092 11
void long before the enactment of the First Step Act. The first
issue with this approach is that it would require, of course,
that we read this statutory phrase solely through an
historical lens and pay no attention at all to a “legal lens.”
But, as we already have explained, Congress writes statutes
against the background of existing law, and nothing in the
statutory language suggests that Congress meant to abandon
its usual course of legislating in light of existing law.
We also could pay the words of the statute a great deal
extra by departing completely from the text and invoking
our own policy preferences. In United States v. Hodge, the
Third Circuit, after deciding that the defendant had not been
granted a full resentencing, wrote in pure dicta that
“drawing the line at initial-sentence imposition is preferable
to drawing the line at ultimate-sentence imposition. If we let
all defendants awaiting resentencing capitalize on the First
Step Act, we would favor defendants whose appeals—for
whatever reason—took longer to resolve.” 948 F.3d 160, 164
(3d Cir. 2020).
Preferable? To whom? Neither the Third Circuit nor the
Seventh Circuit has the prerogative of policy choice in this
matter. As the Supreme Court noted in Dorsey, and as we
noted in Pierson, any reduction of criminal penalties will
involve difficult line drawing with respect to pending cases.
Dorsey, 567 U.S. at 280; United States v. Pierson, 925 F.3d 913,
927 (7th Cir. 2019), vacated on other grounds, 140 S. Ct. 1291
(2020). Here, Congress, attempting to cure what it saw as an
inappropriate sentencing structure, determined that its
revision should control any situation where a district court
still had to impose a sentence. Considering that Congress
had determined that the earlier sentencing structure resulted
12 No. 19-2092
in sentences that were too long and unfair, it is difficult to
fault Congress for ensuring that those sentences would not
be imposed on defendants yet to be sentenced. It wanted the
unfair practice stopped upon enactment. Period.
Nor should we ignore the Supreme Court’s discussion in
Dorsey that Congress generally tries to avoid “radically
different sentences” for individuals “who each engaged in
the same criminal conduct … and were sentenced at the same
time.” Dorsey, 567 U.S. at 276–77 (emphasis added).
There is no reason to think that Congress excluded from
its remedy pre-Act offenders facing plenary resentencing.
Pre-Act offenders whose sentences have been vacated are
similarly situated to individuals who have never been
sentenced. The text of the Act is silent as to any intent of
Congress to inflict on them the exact harsh and expensive
mandatory minimum sentences that § 403 restricts and
reduces. That result would be fundamentally at odds with
the First Step Act’s ameliorative nature. When “construing a
statute, courts ought not deprive it of the obvious meaning
intended by Congress, nor abandon common sense.” United
States v. Bhutani, 266 F.3d 661, 666 (7th Cir. 2001) (citation
omitted).
If we are striving to pay the text extra, there is one more
argument that we might tease out of the text. We could rest
on the fact that the statute turns on the imposition of “a
sentence,” not “the sentence,” “the final sentence,” or “a
sentence that continues to legally bind the defendant.”
According to this argument, because “a” is an indefinite
article, it “points to a nonspecific object, thing, or person that
No. 19-2092 13
is not distinguished from the other members of a class.”5
Therefore, the argument goes, the phrase “a sentence” refers
to the long-ago vacated sentence rather than the sentence to
be imposed by the sentencing court in the future.
To make this one-letter article support the weight of a
“plain meaning” argument, we would have to pay it much
more than a little extra. The Government draws significance
from the fact that, if Congress had intended § 403 to apply to
cases which had not reached a final disposition, “it easily
could have”6
employed language such as “the final
sentence” or “a sentence that continues to legally bind the
defendant.” By the same token, however, one could draw
significance from the fact that Congress did not use the
words “an original sentence” or “an initial sentence.”
Congress did not qualify the terms of the statute because it
clearly applied to all defendants awaiting a valid sentence at
the time of its enactment. The Government’s reading places
great weight on a single article, “a.” Yet the text of the First
Step Act gives reason to doubt that the word “a” was
intended to carry such import. Had Congress intended the
phrase “a sentence” to convey a very broad meaning, it
could have used the word “any,” as it did earlier in the same
sentence: “This section … shall apply to any offense … if a
sentence … has not been imposed … .” § 403(b) (emphasis
added).
5 BRYAN A. GARNER, GARNER’S MODERN ENGLISH USAGE 991 (4th ed.
2016).
6 Appellee’s Br. 16.
14 No. 19-2092
Further, the surrounding text of the statute indicates that
Congress intended § 403 to apply to all defendants awaiting
sentence at the time of its enactment. Courts have “long
refused to construe words ‘in a vacuum.’” Gundy v. United
States, 139 S. Ct. 2116, 2126 (2019) (quoting Davis v. Michigan
Dep’t of Treasury, 489 U.S. 803, 809 (1989)). “[R]easonable
statutory interpretation must account for both ‘the specific
context in which … language is used’ and ‘the broader
context of the statute as a whole.’” Util. Air Reg. Grp. v. EPA,
573 U.S. 302, 321 (2014) (quoting Robinson v. Shell Oil Co., 519
U.S. 337, 341 (1997)).
Section 403 is distinctive in that it contains a provision
that specifically addresses its application to pending cases.
Congress took great care to ensure that defendants who had
been convicted but not sentenced would not be denied the
benefits of § 403. Congress made crystal clear that § 403
reaches all defendants whose sentences had not been
imposed before enactment—even those who had been
convicted before the Act. The text gives us no reason to
believe that Congress excluded from this expansive reach
certain defendants awaiting sentencing just because those
defendants previously had received invalid sentences.
Paying extra to rely on this argument is a poor deal
indeed.7
7 Because the plain language of the statute requires reversal of the
district court’s judgment, we need not address the rule of lenity.
However, if both readings render the text ambiguous, the rule of lenity
favors the interpretation set forth in this opinion. United States v. Bass,
404 U.S. 336, 348 (1971) (“[W]here there is ambiguity in a criminal
statute, doubts are resolved in favor of the defendant.”).
No. 19-2092 15
Just as we could pay the words of the statute extra to
support a meaning other than the obvious one, we could
also enlist our own precedent and “pay it extra” by forcing
the precedent to spread its dominion into unintended fields.
We could say, as the Government requests, that our recent
opinion in Pierson, 925 F.3d 913, is consistent with employing
an exclusively historical lens to the Act’s use of the word
“imposed.” The Government’s argument relies heavily on
our statement in Pierson that, “[i]n common usage in federal
sentencing, a sentence is ‘imposed’ in the district court,
regardless of later appeals.” Id. at 927.
To use Pierson as a weight-bearing pillar, we would have
to pay it a great deal extra. Pierson addressed an entirely
different question. Pierson appealed his original sentence
and, while his appeal was pending, the First Step Act
became effective. We held, correctly, that because Pierson
had a sentence in place at the time of the Act’s enactment,
the Act did not apply to him. Pierson’s situation gave us no
cause to consider whether plenary resentencing awaited
Pierson in the future.
Moreover, the language from Pierson, “regardless of later
appeals,” 925 F.3d at 927, has never been construed to apply
to defendants whose sentences were vacated. Other cases
that have relied upon Pierson for this principle have involved
a defendant either directly appealing his sentence or seeking
a reduction of a sentence that was imposed long before the
Act’s enactment.8
In Pierson, we held that “the Act cannot
8 See United States v. Gonzalez, 949 F.3d 30, 42–43 (1st Cir. 2020), petition
for cert. filed (U.S. June 22, 2020) (No. 19-8783); United States v. Aviles, 938
F.3d 503, 510 (3d Cir. 2019) (“Congress did not refer to ‘finality,’ and
(continued … )
16 No. 19-2092
justify a reduction” to a sentence that was imposed prior to
the Act. United States v. Jackson, 940 F.3d 347, 353 (7th Cir.
2019). Pierson did not address the situation here: whether the
Act applies to a defendant who was not subject to a sentence
when the Act became effective.
Pierson is consistent with Congress’s intent not to reopen
finished proceedings because of the change in the law
effected by the First Step Act. In choosing not to write
§ 403(b) to allow reductions to valid sentences that already
had been imposed, Congress expressed a policy preference
in favor of settled expectations and ease of administration.
Nevertheless, in crafting clarifying legislation—in
attempting to “set things right”—Congress naturally wanted
to reach all cases where there was not already a sentence in
( … continued)
imposition and finality are two different concepts.”); United States v.
Jordan, 952 F.3d 160, 171–72 (4th Cir. 2020), petition for cert. filed (U.S. Sept.
1, 2020); United States v. Richardson, 948 F.3d 733, 748–50 (6th Cir. 2020),
petition for cert. filed (U.S. July 1, 2020) (No. 19-8878); United States v.
Jackson, 940 F.3d 347, 353 (7th Cir. 2019); United States v. Sullivan, 781 F.
App’x 553, 554 (7th Cir. 2019); United States v. Ruff, 795 F. App’x 796, 797
(11th Cir. 2020); United States v. Gelin, 810 F. App’x 712, 726 (11th Cir.
2020), petition for cert. filed (U.S. July 27, 2020) (No. 20-5178); United States
v. Garcia, No. 17-13992, 2019 WL 7503482, *1 (11th Cir. July 9, 2019);
Young v. United States, 943 F.3d 460, 462 (D.C. Cir. 2019); United States v.
Williams, 03-CR-795, 2019 WL 3842597, at *4 n.5 (E.D.N.Y. Aug. 15, 2019);
United States v. Garcia, No. 6:05-cr-00006-1, 2019 WL 4039638, at *1 (W.D.
Va. Aug. 27, 2019); United States v. King, No. 1:03-cr-00182, 2020 WL
1274998, at *1–2 (S.D. Ind. Mar. 16, 2020); State v. Hinton, No. 2019-097,
2020 WL 4380703, at *4 (Vt. July 31, 2020). United States v. Hodge, 948 F.3d
160 (3d Cir. 2020), discussed supra at page 11, is also distinguishable
because it involved a limited remand.
No. 19-2092 17
place. There were no countervailing considerations
suggesting that Congress wanted to deprive anyone without
a set sentence of the benefit of these new, preferred
sentencing standards. And, as we already have noted,
Congress generally strives to avoid “radically different
sentences” for defendants “who each engaged in the same
criminal conduct … and were sentenced at the same time.”
Dorsey, 567 U.S. at 276–77.
III
The First Step Act is an historic, bipartisan attempt by
Congress to take the lessons of the past and to formulate a
new sentencing policy for the United States.9
Although it
elected not to reopen sentences in place on the date of
enactment, Congress carefully crafted a provision to ensure
that its new policy determination effectively controlled
every sentence after that date. We may disagree with where
and how Congress drew the line, but it was Congress’s
prerogative to draw that line. It had a difficult task. We
ought not make the task more difficult by ignoring the clear
command of the legislative directive.

Outcome: Accordingly, the judgment of the district court is
affirmed.
AFFIRMED

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