   Case: 12-10952   Document: 00512557257    Page: 1   Date Filed: 03/11/2014




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT
                                                              United States Court of Appeals
                                                                       Fifth Circuit


                              No. 12-10952                           FILED
                                                               March 11, 2014
                                                                Lyle W. Cayce
                                                                     Clerk
UNITED STATES OF AMERICA,

                                       Plaintiff - Appellee

     v.

CARLOS HUMBERTO BEJARANO,

                                       Defendant - Appellant


Cons w/ 12-11005

UNITED STATES OF AMERICA,

                                       Plaintiff - Appellee

     v.

CLAUDIA PATRICIA ATEHORTUA-CASTRO,

                                       Defendant - Appellant



              Appeals from the United States District Court
                   for the Northern District of Texas
               USDC Nos. 3:11-CV-2784 and 3:11-CV-2780


Before KING, SOUTHWICK, and GRAVES, Circuit Judges.
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                                       No. 12-10952

PER CURIAM: *
       Defendants-Appellants Carlos Humberto Bejarano and Claudia Patricia
Atehortua-Castro appeal the denial of their petitions for habeas corpus under
28 U.S.C. § 2255 for ineffective assistance of counsel.                 For the following
reasons, we AFFIRM the judgment of the district court.
           I.     FACTUAL AND PROCEDURAL BACKGROUND
       Defendants-Appellants Carlos Humberto Bejarano and Claudia Patricia
Atehortua-Castro (“Appellants”), husband and wife, pled guilty to conspiring
to commit money laundering. According to the terms of the plea agreements,
Appellants waived their rights to contest their convictions and sentences in
any collateral proceeding except for claims of ineffective assistance of counsel. 1
On October 19, 2010, the district court sentenced both Appellants to forty-two
months’ imprisonment and a two-year term of supervised release. The district
court allowed Atehortua-Castro to delay the commencement of her prison term
and return to China to care for her minor children until Bejarano completed
his prison term. There was no direct appeal.
       On October 17, 2011, Bejarano and Atehortua-Castro filed timely pro se
motions to vacate their sentences and convictions pursuant to 28 U.S.C. § 2255.
The motions were consolidated because they presented the same claims and
were based on the same underlying facts. In Bejarano’s motion, he alleged
ineffective assistance of counsel because his counsel, Michael P. Gibson, failed
to file a notice of appeal, file an Anders brief, and secure a written pre-


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.

       1Appellants reserved the right “(a) to bring a direct appeal of (i) a sentence exceeding
the statutory maximum punishment, or (ii) an arithmetic error at sentencing, and (b) to
challenge the voluntariness of [their] plea of guilty or this waiver.”
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agreement from the government requesting immunity. Bejarano asserted that
“he has shown and will further show that he would have taken an appeal.” He
also argued that he is actually innocent. Bejarano subsequently moved to
amend his petition to add a claim for ineffective assistance of counsel for failure
to adequately consult with him about his appellate rights, which the court
granted.
      In Atehortua-Castro’s motion, she likewise asserted that her counsel,
J. Roberto Cardenas, was ineffective. 2            She stated that “[e]ven though
petitioner[] requested specifically of her counsel to submit a direct appeal of
her sentence, counsel did not do so.” Like her husband, Atehortua-Castro also
argued actual innocence. Atehortua-Castro subsequently moved to amend her
petition to add a claim for ineffective assistance of counsel for failure to
adequately consult with her about her appellate rights, which the court
granted.
      The government opposed both motions, asserting that “Bejarano cannot
show ineffective assistance in this instance because he never directed his
attorney to file a notice of appeal,” and noting that “[b]oth Gibson and
Cardenas testify that neither Bejarano nor Atehortua instructed them to file
an appeal.” The government included affidavits of Gibson and Cardenas.
Gibson stated that he had several meetings with Bejarano during which they
reviewed the plea agreement. When Gibson met with Bejarano prior to the
sentencing hearing, he reviewed each paragraph with Bejarano, including the
waiver of the right to appeal. He “believe[d] [Bejarano] fully understood he
was waiving appeal rights except in very limited circumstances.” He stated



      2 Cardenas maintains his practice in New York State. Gibson practices in Texas and
maintains his office in Dallas. Appellants’ meetings with counsel generally took place in
Gibson’s office, with Cardenas participating by telephone when he was not present in Texas.
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that “[a]t no time during the sentencing hearing or at anytime while we were
in the courtroom did [Bejarano] make any statement to me telling me to file an
appeal on his behalf.” He said that Bejarano and his wife
      did bring up the question of appealing the sentence at that time. I
      remember explaining to him that he had waived his right to appeal
      except in limited circumstances in the [p]lea [a]greement. I told
      him that I did not believe those limited circumstances existed at
      this time. I told him that in my opinion there was nothing for him
      to appeal. I believe that he understood the discussion. He did not
      instruct me to file a notice of appeal on his behalf at that time.
      He did not instruct me to file a notice of appeal on his behalf at any
      time subsequent to that meeting.
      Cardenas stated that he had “numerous telephonic meetings” with
Atehortua-Castro in which they reviewed the plea agreement. He “carefully
went over each paragraph of the [p]lea [a]greement including . . . the Waiver
of Right to Appeal[] with her,” and he “believe[s] she fully understood she was
waiving appeal rights except in very limited circumstances.” He noted that
after the hearing,
      Ms. Atehortua-Castro and [Bejarano] did bring up the possibility
      of appealing the sentence. Both Mr. Gibson and I explained to
      them that they had waived their right to appeal except in limited
      circumstances and both Mr. Gibson and I told them that we did
      not believe those limited circumstances existed at this time. I told
      Ms. Atehortua-Castro that since the Court had sentenced her in
      accordance with the plea there was nothing to appeal. She was
      upset, but fully understood. She did not instruct me to file a notice
      of appeal on [her] behalf at that time.
      Further she did not instruct me to file [a] notice of appeal on her
      behalf at any time subsequent to that meeting.
      On April 26, 2012, the magistrate judge held an evidentiary hearing with
respect to the claim that counsel provided ineffective assistance of counsel by




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                                      No. 12-10952

failing to file a notice of appeal despite Bejarano’s alleged requests to do so. 3
At the hearing, the court heard testimony from Bejarano, Gibson, and
Cardenas.      Bejarano testified, through an interpreter, that “[w]e asked
Robert[o] [Cardenas] to file an appeal.” Bejarano also testified that neither
Cardenas nor Gibson informed Bejarano and his wife that they reserved the
right to appeal the voluntariness of their plea or the voluntariness of their
waiver of the appeal. Bejarano stated that “he would have insisted on an
appeal” had he known the grounds under which he could still appeal. He stated
that the attorneys “did not explain to me clearly that I had the right to appeal.”
He admitted that he “never asked [the attorneys] to explain [his] right to
appeal” and never “instructed Mr. Gibson to file an appeal on [his] behalf.”
       Cardenas testified that “we were all hoping for a lower sentence than
that that was given by Judge Lynn.”              He testified that “[his] client was
extremely dissatisfied with the time,” and that both appellants stated “too
much time” in Spanish. Cardenas testified that “[Bejarano] asked me, what
about an appeal,” at which point Cardenas
       [S]aid to Mike [Gibson] before he walked out of the room, Mike,
       before you go anywhere, you need to address this issue right now,
       because your client’s asking about an appeal. . . . And my
       recollection is that Mr. Gibson said, you could appeal, but there
       isn’t anything to appeal because you waived those rights by virtue
       of your plea. And the sentence was lower than the Guidelines. She
       took into consideration the 5K1, and then, because she staggered
       having to serve the actual prison sentence, that, we thought, was
       an extraordinary result. So, at that point, [Gibson] suggested and
       I continued to speak to them along those exact same lines. There
       was never any order to file an appeal. The question was, what

       3The evidentiary hearing was a consolidated hearing on both Appellants’ petitions.
Atehortua-Castro was not present for the hearing and did not testify; Appellants’ counsel
answered affirmatively that he was “proceeding today in her interest.” Because neither party
argues that Atehortua-Castro’s absence poses a problem, constitutional or otherwise, we do
not address the issue.
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                                No. 12-10952

      about an appeal? And it was answered in that way. You could,
      but there isn’t anything to appeal.
Cardenas agreed that “reasons were given for that answer.” However, he
stated that it “was not explained” that “the limited exceptions to the waiver
didn’t apply.” Cardenas testified that he agreed with Gibson’s advice, and told
the appellants “[e]xactly the same thing that [Gibson] said. I thought the
advice was exactly on point.” He testified that neither appellant ever asked
him about an appeal after the post-sentencing meeting.
      Gibson testified that he “did think that the sentence was higher than it
should have been or needed to be,” and that “we were all disappointed in the
42 months.” He testified that he “did say there’s really nothing to appeal.
There’s nothing to be gained. You’ve already waived up most of your rights.
And so the answer is no, no reason to do so. You wouldn’t win.” He “[n]ever
did tell them they couldn’t appeal, but [he] did make that statement that, you
know, nothing to gain.” He testified that neither appellant ever asked him
about an appeal after the post-sentencing meeting.
      At the hearing, Appellants’ new counsel argued that Gibson and
Cardenas had provided ineffective assistance of counsel because “[t]here was
no discussion about the advantages or the disadvantages” of appealing, and
“[counsel] never addressed the limited circumstances that [Appellants] could
appeal.” Therefore, “[t]here was no detailed discussion about that to give the
clients the decision whether or not they should appeal.” The government
asserted that the Appellants could not demonstrate prejudice.
      On June 1, 2012, the magistrate judge issued her Findings, Conclusions,
and Recommendation, recommending that the consolidated § 2255 motions be
denied.   The magistrate judge noted that Appellants “faced a ten-year
minimum sentence,” and “[o]nly by virtue of their guilty pleas, appeal waivers,

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                                 No. 12-10952

and extensive cooperation” were their sentences reduced. Their sentences
were “significantly below the advisory Guidelines range of 108–135 months
and, thus, did not trigger any of the appeal waiver exceptions.” The magistrate
judge noted the “unprecedented and extremely favorable ruling” that allowed
Atehortua-Castro to return to China while Bejarano served his sentence. The
magistrate judge stated that “Mr. Gibson provided Bejarano sufficient
information from which he could have intelligently and knowingly asserted his
right to an appeal if he had wanted to.” The magistrate judge found that
Appellants “never instructed counsel to appeal,” and concluded that “neither
Petitioner reasonably demonstrated to counsel an interest in appealing.” She
found “Bejarano’s testimony at the evidentiary hearing to the contrary” to be
“not plausible,” and, therefore, she determined that “counsel adequately
consulted with Petitioners about appealing.” The magistrate judge explained
that, as a result, Appellants could not “overcome the presumption that their
attorney[s’] conduct falls within the wide range of reasonable assistance.”
      The magistrate judge determined that even if counsel’s performance was
deficient, Appellants could not show prejudice because they “cannot
demonstrate a reasonable probability that, but for counsel’s presumed failure
to adequately consult with them about an appeal, they would have timely
appealed.” The magistrate judge continued:
      Petitioners’ only evidence of prejudice is Bejarano’s testimony that,
      if counsel had properly advised him that he could have appealed
      the voluntariness of the waiver and plea, he and Castro would have
      insisted on appealing. Nothing in the record supports Castro’s
      supposition, however, and, as indicated previously, the Court finds
      Castro’s self-serving testimony implausible in light of the other
      evidence.




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Appellants filed objections to the magistrate judge’s Findings, Conclusions,
and Recommendations, contending that the magistrate judge erred in both her
factual findings and legal conclusions.
      On July 27, 2012, the district court overruled Appellants’ objections,
adopted the Findings, Conclusions, and Recommendations, and denied
Appellants’ request for a certificate of appealability. In its judgment, issued
on the same day, the court denied their habeas petitions. Only July 1, 2013,
we granted Appellants a certificate of appealability on the issue of whether
counsel rendered ineffective assistance by failing to adequately consult with
Appellants about their appellate rights.
                      II.      STANDARD OF REVIEW
      Under the Antiterrorism and Effective Death Penalty Act of 1996, our
review is limited to the issue identified in the certificate of appealability. 28
U.S.C. § 2253(c)(3) (2012). We review de novo a district court’s denial of a
§ 2255 petition based on ineffective assistance of counsel. United States v.
Pham, 722 F.3d 320, 323 (5th Cir. 2013). We review findings of fact for clear
error. Id.
                            III.   APPLICABLE LAW
      To succeed on a claim of ineffective assistance of counsel, a defendant
must show that (1) his “counsel’s representation fell below an objective
standard of reasonableness,” and (2) the “counsel’s deficient performance
prejudiced the defendant.” Roe v. Flores-Ortega, 528 U.S. 470, 476–77 (2000)
(quoting Strickland v. Washington, 466 U.S. 668, 688, 694 (1984)) (internal
quotation marks omitted). “Failure to make the required showing of either
deficient performance or sufficient prejudice defeats the ineffectiveness claim.”
Strickland, 466 U.S. at 700; see also Crutsinger v. Stephens, 540 F. App’x 310,


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313 (5th Cir. 2013) (per curiam) (unpublished) (“Failure to satisfy either prong
is fatal to an [ineffective assistance of counsel] claim.”).
       In Flores-Ortega, the Supreme Court held that the Strickland test
applies to claims “that counsel was constitutionally ineffective for failing to file
a notice of appeal.”    528 U.S. at 477.      To satisfy the prejudice prong, “a
defendant must demonstrate that there is a reasonable probability that, but
for counsel’s deficient failure to consult with him about an appeal, he would
have timely appealed.” Id. at 484. “[E]vidence that there were nonfrivolous
grounds for appeal or that the defendant in question promptly expressed a
desire to appeal will often be highly relevant in making this determination.”
Id. at 485.
      To prove deficient performance, a defendant can rely on evidence
      that he sufficiently demonstrated to counsel his interest in an
      appeal. But such evidence alone is insufficient to establish that,
      had the defendant received reasonable advice from counsel about
      the appeal, he would have instructed his counsel to file an appeal.
Id. at 486. The Court has explained that “[a] reasonable probability is a
probability sufficient to undermine confidence in the outcome.”            Cullen v.
Pinholster, 131 S. Ct. 1388, 1403 (quoting Strickland, 466 U.S. at 694). The
defendant need not show “that his hypothetical appeal might have had merit.”
Flores-Ortega, 528 U.S. at 486; see Pham, 722 F.3d at 324.
      We have held that Flores-Ortega applies “even where a defendant has
waived his right to direct appeal and collateral review.” United States v. Tapp,
491 F.3d 263, 266 (5th Cir. 2007).




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                                       No. 12-10952

                                    IV.    ANALYSIS 4
       Assuming arguendo that Appellants can establish that their counsel did
not sufficiently consult with them about filing an appeal, and that counsel had
a duty to do so, Appellants cannot demonstrate prejudice. See Flores-Ortega,
528 U.S. at 484. Failure to satisfy either prong of an ineffective assistance
claim defeats the claim. Strickland, 466 U.S. at 700; Crutsinger, 540 F. App’x
at 313. The record does not support a finding that there is a “reasonable
probability” that Appellants would have timely appealed but for their counsels’
deficient failure to consult, so we need not address the deficient performance
prong. Therefore, we affirm the district court’s denial of Appellants’ habeas
petitions.
       Bejarano asserted in his petition for habeas relief that “he has shown
and will further show that he would have taken an appeal.”                         Similarly,
Atehortua-Castro asserted in her motion that it “[i]s clear that the attorney[s’]
deficient performance prejudice[d] the petitioner such that there is a
reasonable probability that, but for counsel[s’] professional errors, the result of
the proceeding would have been different.”                 At the evidentiary hearing,
Bejarano testified that “he would have insisted on an appeal” had he known
the grounds under which he still could appeal. He testified that he never



       4  We will consider Appellants to present a single claim for ineffective assistance of
counsel because Bejarano’s counsel (Gibson) and Atehortua-Castro’s counsel (Cardenas)
jointly represented Appellants, Appellants raise identical claims stemming from the same
facts, the district court consolidated their appeals, and Appellants filed a joint brief. We use
the term to “counsel” to refer to Gibson and Cardenas jointly.
        Bejarano was released from prison on November 26, 2013, but his petition is not moot.
See Spencer v. Kemma, 523 U.S. 1, 8 (1998) (“In recent decades, we have been willing to
presume that a wrongful criminal conviction has continuing collateral consequences . . . .”);
see also United States v. Camargo, 119 F. App’x 670, 671 (5th Cir. 2005) (per curiam)
(unpublished) (“Because [defendant] is still serving his term of supervised release, the case-
or-controversy requirement is met here and the case is not moot.”).
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instructed counsel to file an appeal on his behalf after sentencing, and to his
knowledge, neither did Atehortua-Castro.
      We conclude that this record is insufficient to support a finding that
there is “a reasonable probability that, but for counsel’s deficient failure to
consult with [Appellants] about an appeal, [Appellants] would have timely
appealed.” Flores-Ortega, 528 U.S. at 484. Appellants rely on two facts to
establish reasonable probability: that they expressed interest to counsel in
appealing, and Bejarano’s testimony that he would have appealed. These two
facts cannot carry Appellants’ burden.
      Appellants asked their counsel whether they could appeal, and it is true
that “promptly express[ing] a desire to appeal will often be highly relevant in
making” the prejudice determination.        Id. at 485.    However, contrary to
Appellants’ contention, this fact alone is not “proof” that Appellants would have
appealed but for counsels’ deficient performance. The Supreme Court has
explained that while “a defendant can rely on evidence that he sufficiently
demonstrated to counsel his interest in an appeal,” this “evidence alone is
insufficient to establish that, had the defendant received reasonable advice
from counsel about the appeal, he would have instructed his counsel to file an
appeal.” Id. at 486. Appellants must present more to succeed.
      The only other evidence Appellants point to in support of their contention
is Bejarano’s testimony at the evidentiary hearing that he would have
appealed. However, the district court stated that “[n]othing in the record
support[ed]” this supposition, and found Bejarano’s testimony to be “self-
serving” and “implausible in light of the other evidence.” Appellants do not
argue that the district court’s finding is clearly erroneous, and have not




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                                        No. 12-10952

demonstrated as such. 5 See Pham, 722 F.3d at 323; see also Brown, 727 F.3d
at 341 (“[T]he district court was well positioned to evaluate [the defendants’]
credibility and was entitled to reject their testimony as self-serving . . . .”).
Moreover, Appellants waited “almost a full year after sentencing” to file their
petitions, post-sentencing actions that some courts have concluded “indicate
[the defendant] was unlikely to have” timely appealed. See Johnson v. United
States, 364 F. App’x 972, 977 (6th Cir. 2010) (unpublished). Accordingly,
Appellants fail to show there is a reasonable probability they would have
appealed but for counsels’ deficiency.
       This case is distinguishable from others in which we have applied Flores-
Ortega and found prejudice. In Pham, we found prejudice where the district
court did not make a finding on prejudice and the government failed to brief
the issue on appeal. 722 F.3d at 327. Here, the district court made findings
on prejudice—including that Bejarano’s testimony was “self-serving” and
“implausible in light of the other evidence”—and the government briefed the
issue. Appellants have not argued or shown that the district court’s findings
were clearly erroneous, see id. at 323, and their reliance on Bejarano’s question



       5  In their reply brief, Appellants argue that the district court’s finding that Bejarano’s
testimony was self-serving is “incorrect because there are no facts in this record to show that
Appellant Bejarano’s testimony was ‘inconsistent with the balance of the evidence presented’”
(quoting United States v. Brown, 727 F.3d 329, 341 (5th Cir. 2013)). However, the district
court need not find a party’s testimony inconsistent with other evidence in order to conclude
that it is self-serving. Thus, Appellants’ argument does not demonstrate that the district
court clearly erred. See also Johnson v. Collins, 964 F.2d 1527, 1532 (5th Cir. 1992) (“When
findings of fact are based on credibility determinations regarding witnesses, we must show
even more deference to the trial court’s findings.”); Toro v. Fairman, 940 F.2d 1065, 1068 (7th
Cir. 1991) (“[Defendant’s] statement is self-serving and alone, insufficient to establish that,
but for counsel’s advice, there is a reasonable probability that he would have accepted the
plea.”), superseded by statute on other grounds as recognized in Thornton v. Reynolds, 2001
WL 845452, at *2 (S.D.N.Y. July 26, 2001). Moreover, we do not consider arguments raised
for the first time in a reply brief. United States v. Rodriguez, 602 F.3d 346, 360 (5th Cir.
2010).
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to counsel about appealing is not enough to demonstrate a reasonable
probability that they would have appealed.
      In United States v. Rivas, 450 F. App’x 420, 422, 428 (5th Cir. 2011) (per
curiam) (unpublished), we found Strickland’s prejudice prong satisfied where
the defendant instructed counsel, in writing and one day after the district court
entered its order, to file an appeal, but counsel failed to do so. Id. at 428–29.
Here, the record reflects that Appellants did not instruct counsel to appeal,
either immediately after the district court entered its order or later.
      The other cases Appellants rely on to support their ineffective assistance
of counsel contention are also distinguishable as to the prejudice prong. In
Thompson v. United States, 504 F.3d 1203, 1208 (11th Cir. 2007), for example,
the court found the prejudice prong satisfied where the petitioner-appellant
not only expressed an interest in appealing, but “was dissatisfied with what he
perceived to be a disparate sentence compared to his similarly-situated co-
defendants.” Here, there were no disparate sentences between co-defendants
to indicate that a defendant sentenced to a lengthier term for the same conduct
might be more likely to appeal his sentence. Appellants received the same
below-guidelines sentences, and Atehortua-Castro received the additional
allowance of traveling to China while Bejarano served his sentence.
      Similarly, in United States v. Kelley, 318 F. App’x 682, 688 (10th Cir.
2009) (per curiam) (unpublished), which Appellants cited in the district court,
the court found the prejudice prong satisfied where the defendant-appellant
asked counsel to “take care of everything,” “ask[ed] his sister to follow up with”
counsel about appealing, and “testified under oath that he intended to file an
appeal, and his sister’s testimony confirmed this assertion.” Here, Appellants
did not instruct counsel to file an appeal or ask anyone to ensure that counsel


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                                       No. 12-10952

did so. Unlike in Kelley, there were no actions or other facts to suggest a
reasonable probability that Bejarano would have appealed. 6
       Finally, Appellants argue that “[o]nce the Appellants heard their counsel
tell them there was nothing to appeal, there was no reason for the Appellants
to insist on an appeal.” In their reply brief, Appellants note that they “did not
appeal because they were following the inadequate advice of counsel,” and
“[u]nder these circumstances, this cannot be weighed against them.” The fact
that Appellants did not subsequently file an appeal or instruct their counsel to
do so is but one consideration in our analysis. Appellants’ only evidence to
establish their reasonable probability of appealing is Bejarano’s question to
counsel about an appeal and his testimony at the hearing. As discussed, this
does not satisfy the prejudice prong. Flores-Ortega, 528 U.S. at 486.
                                 V.      CONCLUSION
       For the foregoing reasons, the judgment of the district court is
AFFIRMED.




       6 To the extent Appellants urge us to follow Palacios v. United States, 453 F. App’x
887, 889 (11th Cir. 2011) (per curiam) (unpublished), in which the Eleventh Circuit, in an
unpublished opinion, found prejudice based on the fact that the defendant “immediately
expressed dissatisfaction with his sentence and testified that he wished to file an appeal,” we
decline to do so.
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