24-2692
United States v. VanHoesen
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term 2025
(Submitted: September 3, 2025 Decided: August 24, 2026)
No. 24-2692
UNITED STATES OF AMERICA,
Appellee,
-v.-JOHN VANHOESEN, AKA Johnny Cat,
Defendant-Appellant. 1
Before: CABRANES, LIVINGSTON, and MENASHI, Circuit Judges.
Defendant-Appellant John VanHoesen challenges his sentence of time
served and eight years of supervised release for four drug offenses, arguing that the district court erred procedurally in imposing the supervised release term. We disagree because the district court, when exercising its discretion to resentence VanHoesen under § 404(b) of the First Step Act, was required to impose an eightyear term of supervised release pursuant to the mandatory minimum in the Controlled Substances Act, 21 U.S.C. § 841(b)(1)(B). Congress limited the
1
The Clerk of Court is respectfully directed to amend the official case caption.
1
retroactivity of separate changes to mandatory minimum triggers in § 401 of the First Step Act, and it did not countermand that limitation in § 404. That remains true even after the Supreme Court’s decision in Concepcion v. United States, 597 U.S. 481 (2022). Accordingly, we AFFIRM VanHoesen’s sentence and the judgment of the district court.
FOR APPELLEE: Daniele Neroni Reilly, Albany, NY.
FOR DEFENDANT-APPELLANT: Nicholas Walter, Assistant United States
Attorney, for John A. Sarcone III, First
Assistant U.S. Attorney for the Northern
District of New York, Albany, NY.
DEBRA ANN LIVINGSTON, Circuit Judge:
The issue in this case is whether a district court resentencing a defendant
pursuant to § 404(b) of the First Step Act of 2018 (“the First Step Act”) can reduce
a mandatory minimum term of supervised release imposed by Congress.
Defendant-Appellant John VanHoesen (“VanHoesen”) challenges the eight-year
term of supervised release that the United States District Court for the Northern
District of New York (D’Agostino, J.) imposed when resentencing him, under
§ 404(b) of the First Step Act, for four drug offenses committed in violation of the
Controlled Substances Act, 21 U.S.C. §§ 841(a)(1), 841(b)(1), and 846. The First Step
Act, as relevant here, authorizes defendants sentenced before enactment of the Fair
Sentencing Act of 2010 (“the Fair Sentencing Act”) to move for belated sentencing
relief based on reduced penalties for crack cocaine offenses introduced by the Fair
2
Sentencing Act. 2 VanHoesen argues that in resentencing him pursuant to the First
Step Act, the district court abused its discretion in imposing the eight-year term of
supervised release. We disagree. The district court was required to impose the
eight-year mandatory minimum term. When calculating VanHoesen’s statutory
minimum term of supervised release, it could rely neither on a nonretroactive
provision in § 401 of the First Step Act, which modifies the trigger for the eightyear mandatory minimum, nor on provisions of the U.S. Sentencing Guidelines
(“Guidelines”) implementing § 401’s nonretroactive changes. 3 Accordingly, we
2
Section 404(b) of the First Step Act provides:
A court that imposed a sentence for a covered offense may, on motion of
the defendant, the Director of the Bureau of Prisons, the attorney for the
Government, or the court, impose a reduced sentence as if sections 2 and 3
of the Fair Sentencing Act of 2010 (Public Law 111–220; 124 Stat. 2372) were
in effect at the time the covered offense was committed.
Pub. L. No. 115-391, 132 Stat. 5194, 5222 (2018) (codified at 21 U.S.C. § 841 note (Application of Fair Sentencing Act)). A covered offense is defined as “a violation of a Federal criminal statute, the statutory penalties for which were modified by section 2 or 3 of the Fair Sentencing Act of 2010 . . . , that was committed before August 3, 2010.” Id. § 404(a), 132 Stat. at 5222.
3Section 401 of the First Step Act, as relevant here, amends 21 U.S.C. § 841(b)(1)(B) to provide for an eight-year mandatory minimum term of supervised release in circumstances in which a defendant has a prior “serious drug felony or serious violent felony” conviction, as opposed to a prior “felony drug offense” conviction. First Step Act § 401(a)(2)(B), 132 Stat. at 5220–21. Section 401(c) carves out only a narrow exception to the general rule of nonretroactivity as to this amendment, providing that “[t]his section, and the amendments made by this section, shall apply to any offense that was committed
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affirm the district court’s sentencing determination, albeit on other grounds than
those of the district court.
BACKGROUND
I. Factual Background
On January 14, 2009, a jury convicted VanHoesen of four drug offenses,
including one count of conspiracy to possess with intent to distribute crack cocaine
and three counts of possession with intent to distribute crack cocaine. The
conspiracy was found to involve 50 grams or more of crack cocaine, see 21 U.S.C.
§ 841(b)(1)(A) (2006), and two of the possession counts involved quantities of more
than five grams of crack cocaine, see 21 U.S.C. § 841(b)(1)(B) (2006). In addition,
VanHoesen had been convicted in New York State in 1996 of two earlier drug
offenses.
At the time of VanHoesen’s sentencing on February 11, 2010, conspiracy to
possess with intent to distribute 50 grams or more of crack cocaine carried a
minimum sentence of life imprisonment for any defendant with two prior felony
drug convictions, and 10 years of supervised release for a defendant with a prior
before the date of enactment of this Act, if a sentence for the offense has not been imposed as of such date of enactment.” Id. § 401(c), 132 Stat. at 5221.
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felony drug conviction. 4 21 U.S.C. § 841(b)(1)(A) (2006). Noting that VanHoesen
had “led a lifetime of crime” and that Congress had “take[n] the discretion out of
[his] hands,” the district court (Sharpe, J.) sentenced VanHoesen to a life term on
the conspiracy count; to concurrent life terms on the possession counts involving
five grams or more of crack cocaine; and to a concurrent 360-month term on the
remaining possession count. App’x at 163. The district court also imposed
supervised release for life on each count, should VanHoesen ever be released. This
Court affirmed his conviction and sentence, and the Supreme Court denied
certiorari. United States v. VanHoesen, 450 F. App’x 57 (2d Cir. 2011), cert. denied,
568 U.S. 890 (2012). VanHoesen subsequently pursued collateral relief but was
unsuccessful before the district court and on appeal.
In 2019, VanHoesen moved to reduce his sentence pursuant to § 404(b) of
the First Step Act. Section 404(b) provides that a “court . . . may, on motion of the
defendant . . . impose a reduced sentence as if sections 2 and 3 of the Fair
Sentencing Act of 2010 . . . were in effect at the time the covered offense was
4
VanHoesen was a career offender, whose criminal history category under the Guidelines was VI. His Guidelines range would ordinarily have been 360 months to life, but his recommended Guidelines term became life imprisonment because of the mandatory minimum of life triggered by the two earlier convictions for felony drug offenses.
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committed.” 132 Stat. at 5222. To reduce sentencing disparities between crack
cocaine and powder cocaine, sections 2 and 3 of the Fair Sentencing Act had raised
the threshold for the crack cocaine mandatory minimums under 21 U.S.C.
§ 841(b)(1)(A) from 50 grams to 280 grams and under § 841(b)(1)(B) from 5 grams
to 28 grams. Pub. L. No. 111-220, § 2(a), 124 Stat. 2372, 2372 (2010). The First Step
Act provided VanHoesen, convicted prior to the Fair Sentencing Act’s enactment,
the prospect of sentencing relief pursuant to these provisions.
If the Fair Sentencing Act’s thresholds had been applicable at his original
sentencing, and based on the drug quantities the jury found at trial, VanHoesen
would have been sentenced for conspiracy under § 841(b)(1)(B), rather than
(b)(1)(A), with a mandatory minimum of 10 years in prison (not life) and eight
years of supervised release because VanHoesen had a prior “felony drug offense”
conviction. 21 U.S.C. § 841(b)(1)(B) (2012). As for the possession counts, those
counts would have been subject to § 841(b)(1)(C), not § 841(b)(1)(B), and would
have provided for no mandatory minimum. Id. § 841(b)(1)(C). In his motion,
VanHoesen argued that the newly applicable statutory range, in the event the
district court exercised its discretion to resentence, was 10 years to life. In addition,
he argued that it was “questionable” whether he still qualified as a career offender,
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and thus whether he was subject to a 360-months-to-life Guidelines range. App’x
at 98, 100.
In June 2021, the district court denied VanHoesen’s motion, concluding that
he was eligible for a First Step Act sentence reduction but that none was warranted
because of VanHoesen’s “lengthy antisocial and criminal history.” 5 Id. at 269. As
relevant here, the district court concluded that the First Step Act authorized it to
reconsider VanHoesen’s sentence as if the Fair Sentencing Act’s modified drug
threshold quantities were in effect, but it also concluded that whether
VanHoesen’s Guidelines range would have been different under other intervening
Guidelines changes was not relevant to its discretionary decision to resentence
him. In denying VanHoesen’s motion for relief, the district court cited
VanHoesen’s poor disciplinary record in prison and recalled its earlier observation
that VanHoesen had been a “lifetime criminal,” concluding that “[n]either time
nor [VanHoesen’s] behavior while incarcerated [had] diminished that
observation.” Id. at 268–69.
5 In February 2021, while his First Step Act motion was pending, VanHoesen also filed a motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i), citing, inter alia, the impact of the COVID-19 pandemic on his imprisonment. The district court also denied this motion.
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VanHoesen appealed to this Court. While the appeal was pending, the
Supreme Court decided Concepcion v. United States, which holds that “the First Step
Act allows district courts to consider intervening changes of law or fact in
exercising their discretion to reduce a sentence pursuant to the First Step Act,”
including “unrelated Guidelines changes.” 597 U.S. 481, 493, 500 (2022). This
Court requested briefing on whether “the district court erred insofar as it
concluded that it was not relevant whether Appellant’s guidelines range would be
lower if he were sentenced today.” Mot. Or. at 1, No. 21-1699 (2d Cir. May 11,
2023), Dkt. 65. The case was reassigned to Judge Mae D’Agostino, and upon
motion by the Government, this Court remanded the case so the district court
could consider the impact of Concepcion.
II. Procedural History
Following this Court’s remand, the Government conceded that pursuant to
Concepcion, the district court, when exercising its sentencing discretion, should
consider VanHoesen’s argument that changes to the Guidelines rendered him no
longer a career offender. The district court ultimately granted VanHoesen’s
motion to reduce his sentence pursuant to § 404(b) of the First Step Act, noting,
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inter alia, that VanHoesen had now been incarcerated for almost 18 years. 6 As to
the Government’s argument about VanHoesen’s disciplinary record, the district
court noted that, while VanHoesen had multiple disciplinary infractions in prison,
the last violent or drug-related infractions were years ago. At a resentencing
hearing on October 8, 2024, the district court concluded that, had the Fair
Sentencing Act been in effect at the time of VanHoesen’s offense, the statutory
prison term would have been 10 years to life. After recalculating VanHoesen’s
advisory Guidelines range under the 2023 Guidelines Manual, the district court
determined that the applicable Guidelines range was 130 to 162 months. By the
time of resentencing, the parties agreed that VanHoesen should be sentenced to
time served. But they disagreed on the applicable term of supervised release.
Both before and during the resentencing hearing, the Government
maintained that an eight-year term of supervised release was mandatory.
VanHoesen argued that changes to 21 U.S.C. § 841(b)(1)(B) made by the First Step
Act afforded him a basis for relief. As modified by the Fair Sentencing Act, §
841(b)(1)(B) provided for a four-year mandatory minimum term of supervised
release for a person convicted under that subsection, but for an eight-year term if
6
Based on its decision to resentence, the district court determined that it need not consider VanHoesen’s renewed motion for compassionate release.
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the defendant, like VanHoesen, had already committed a “felony drug offense.”
See 21 U.S.C. § 841(b)(1)(B) (2012). Section 401(a)(2)(B) of the First Step Act
amended this provision so that the eight-year minimum now applies only to those
defendants who have previously committed a “serious drug felony or serious
violent felony.” 132 Stat. at 5221. VanHoesen argued that this change afforded
him a basis for a reduced term “based upon the simple reading” of the Supreme
Court’s decision in Concepcion. App’x at 381. The Government maintained, to the
contrary, that the changes to § 841(b)(1)(B) introduced by § 401(a)(2)(B) of the First
Step Act were irrelevant to the calculation of the mandatory minimum because
they are not retroactive. It added that the court was required by statute to impose
the eight-year term because “Concepcion’s clarification of the permissible scope of
courts’ sentencing discretion did not grant any new authority to override statutory
minimum sentences.” Id. at 379.
At the resentencing hearing, the district court agreed with VanHoesen that
it had discretion to impose a four-year term of supervised release. The district
court acknowledged that § 401 of the First Step Act (which amended the 21 U.S.C.
§ 841(b)(1)(B) trigger for the eight-year mandatory minimum) does not apply
retroactively to VanHoesen. But the district court concluded that the Supreme
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Court’s decision in Concepcion nevertheless authorized it to consider § 401, as well
as the Guidelines amendments implementing it, in calculating VanHoesen’s
statutory term of supervised release. It then determined that neither of
VanHoesen’s 1996 drug convictions constituted a serious drug felony because the
New York statutes under which VanHoesen was convicted are categorically
broader than the federal Controlled Substances Act.
Nonetheless, exercising what it believed to be its discretion, the district court
sentenced VanHoesen to time served and eight years of supervised release. As to
the sentence of time served, the district court acknowledged that at least prior to
the 2009 convictions, “this is a defendant who seems not to learn from previous
mistakes.” Special App’x at 12. But it noted a variety of factors in imposing the
time-served sentence, including VanHoesen’s role in the conspiracy, the lower
sentences of more culpable coconspirators, and the lengthy period he had already
served. In concluding that a term of eight years of supervised release was
appropriate, the district court pointed to VanHoesen’s two previous drug
convictions, his disciplinary and drug violations while incarcerated, and his “long
history of substance abuse.” Id. at 22–23. The district court also noted
VanHoesen’s “mental issues” and “antisocial personality,” and the fact that his
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probation was twice revoked while VanHoesen was on release pursuant to his
previous convictions. Id. at 23. “These are all very concerning to the Court,” it
concluded, and “a sound basis to order eight years of supervision.” Id.
VanHoesen once again appealed, this time to challenge his term of
supervised release.
DISCUSSION
On appeal, VanHoesen argues that the district court abused its discretion in
imposing a term of eight years of supervised release. We disagree. We review for
plain error because VanHoesen failed to raise his challenge in the district court.
See United States v. Villafuerte, 502 F.3d 204, 208 (2d Cir. 2007) (reviewing for plain
error the failure to consider 18 U.S.C. § 3553(a) factors because “raising an
objection to the failure to do so in order to alert the district court to the problem is
neither difficult nor onerous”); see App’x at 376 (VanHoesen “requesting that the
Court impose the least amount of supervised release that is allowed” but failing
to make any arguments under § 3553(a)). But under any standard of review,
VanHoesen’s challenge fails because the district court was required by statute to
impose a mandatory eight-year term of supervised release. 21 U.S.C. § 841(b)(1)(B)
(2012). To be sure, the district court believed the eight-year term that it imposed
was discretionary. But that “error was harmless” because the district court “would
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have imposed the same sentence” given it lacked the discretion to do otherwise.
United States v. Runner, 143 F.4th 146, 162 (2d Cir. 2025). Here, the First Step Act’s
changes to the mandatory terms of supervised release in § 841(b)(1)(B) do not
apply retroactively to VanHoesen. The district court was thus obliged to impose
the mandatory minimum term that would have applied if the Fair Sentencing Act
had been in effect when VanHoesen committed his crimes. Accordingly, we affirm
on this basis.
* * *
Pursuant to the First Step Act, the district court could resentence VanHoesen
as if the drug quantity thresholds established by the Fair Sentencing Act had been
in effect when he committed his crimes. See First Step Act § 404(b), 132 Stat. at
5222. Because the jury found that VanHoesen’s drug trafficking conspiracy
involved 50 or more grams of crack cocaine, his offense at resentencing fell under
§ 841(b)(1)(B), applicable to conspiracies involving 28 or more grams of cocaine,
rather than § 841(b)(1)(A), covering conspiracies involving 280 or more grams of
cocaine. That lowered VanHoesen’s mandatory minimum term of imprisonment
from life in prison to 10 years and the applicable mandatory minimum term of
supervised release from 10 years to eight years.
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To repeat, the Controlled Substances Act, as amended by the Fair Sentencing
Act, mandated that anyone who violates § 841(b)(1)(B) “after a prior conviction for
a felony drug offense . . . shall be sentenced to a term of imprisonment which may
not be less than 10 years and not more than life imprisonment.” 21 U.S.C.
§ 841(b)(1)(B) (2012); see Fair Sentencing Act § 2(a), 124 Stat. at 2372. And as for
supervised release, the amended statute mandated that “any sentence imposed
under this subparagraph . . . shall, if there was such a prior conviction, include a
term of supervised release of at least 8 years in addition to such term of
imprisonment.” 21 U.S.C. § 841(b)(1)(B) (2012).
The district court reached its conclusion that it had discretion to sentence
below the mandatory eight-year term because it understood the Supreme Court’s
decision in Concepcion to authorize it, when calculating the statutory minimum, to
consider nonretroactive amendments to the Sentencing Guidelines promulgated
to reflect changes to § 841(b)(1)(B) made by § 401(a) of the First Step Act. But
Congress in § 401(a) of the First Step Act made clear that its statutory changes to §
841(b)(1)(B) would not apply retroactively to someone in VanHoesen’s position.
Section 401(a) applies to offenses committed before the date of its enactment only
in cases where no sentence had been imposed as of that date. First Step Act
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§ 401(c), 132 Stat. at 5221. Otherwise, “for defendants sentenced before the Act,
the general rule of nonretroactivity remains in place.” Rutherford v. United States,
146 S. Ct. 1320, 1327 (2026).
We explained this in United States v. Bryant, noting that “the plain text of
Section 401(c) limits the retroactive applicability of Section 401(a) to defendants
who committed offenses before the First Step Act became law only if they did not
yet have a sentence imposed as of the date of enactment.” 991 F.3d 452, 458 (2d
Cir. 2021), vacated and remanded on other grounds, 142 S. Ct. 2900 (2022). 7 And we
explained in United States v. Echeverry that district courts’ discretion to resentence
under § 404(b) of the First Step Act exists only when a defendant could receive a
lower sentence under the Fair Sentencing Act changes, and not when the
defendant would be subject to the same mandatory minimum already imposed.
978 F.3d 857, 859–60 (2d Cir. 2020); see also United States v. Reed, 7 F.4th 105, 115–16
(2d Cir. 2021) (noting that where a sentence “was already at the statutory
mandatory minimum” and “could not be reduced regardless of the Fair
7 On remand to consider the effect of Concepcion, the district court in Bryant correctly determined that Concepcion did not allow it to reduce the minimum term of supervised release “because an eight-year term is required by statute.” United States v. Bryant, No. 6-cr-17, 2022 WL 6819674, at *2 & n.1 (S.D.N.Y. Oct. 11, 2022).
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Sentencing Act’s modifications to crack cocaine penalties,” no § 404(b) relief is
available).
The Supreme Court held in Concepcion that discretionary resentencing
under § 404(b) of the First Step Act is plenary and “that the First Step Act allows
district courts to consider intervening changes of law or fact in exercising their
discretion to reduce a sentence pursuant to the First Step Act,” including “changes
to the Sentencing Guidelines.” 597 U.S. at 486, 500 (emphasis added). Outside of
statutory and constitutional limits, “a district court’s discretion to consider [such]
information” in “deciding whether, and to what extent, to modify a sentence” is
not restrained. Id. at 486–87 (emphasis added).
In other words, Concepcion addresses the discretionary aspects of
resentencing pursuant to the First Step Act. It does not authorize a district court
to vary from an applicable mandatory minimum imposed by Congress. See United
States v. Jackson, 58 F.4th 1331, 1336 (11th Cir. 2023) (noting that
Concepcion “addresse[s] an issue that arises only after drug quantity and the
corresponding statutory penalties have been established: which factors the district
court may consider in deciding an appropriate sentence”); accord United States v.
Sterkaj, 138 F.4th 95, 101 (2d Cir. 2025) (holding that Concepcion’s discussion of
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judicial sentencing discretion “is no more than a restatement of a settled principle
of law”). When Congress imposes a mandatory minimum, it deprives district
courts of their traditional sentencing discretion. “A district court is never free—
even in an individual case—to reject a [sentencing term] that Congress has
required.” Rutherford, 146 S. Ct. at 1334 n.7.
That means, as the Sixth Circuit correctly concluded in United States v. Caver,
that district courts cannot consider nonretroactive changes made to the Controlled
Substances Act by § 401 of the First Step Act to recalculate a defendant’s statutory
mandatory minimum, where such changes do not apply in his case. 101 F.4th 422,
429 (6th Cir. 2024) (holding that “the district court could consider unrelated legal
changes only when undertaking the discretionary balancing of the § 3553(a)
factors” (citing Concepcion, 597 U.S. at 496–500 & n.6)). Nor can district courts
employ Guidelines amendments reflecting such nonretroactive statutory changes
to vary an applicable statutory mandate. “[N]o plausible reading of the First Step
Act or the caselaw interpreting it permit[s] the district court to sentence [a
defendant] below the mandatory-minimum term that he faced under the Fair
Sentencing Act.” Id.
17
To hold otherwise, as the district court did here by reading Concepcion to
empower it to disturb § 841(b)(1)(B)’s mandatory minimum eight-year term of
supervised release, would circumvent Congress’s sentencing mandate. In the First
Step Act, Congress changed the eight-year term of supervised release applicable
to offenders with prior drug felonies to apply only to those with prior serious drug
felonies or serious violent felonies. § 401(a), 132 Stat. at 5220–21. But it kept “the
general rule of nonretroactivity,” deciding to “depart[] from this rule in a very
limited respect” for “offenses committed before the statute’s enactment.”
Rutherford, 146 S. Ct. at 1327; see First Step Act § 401(c), 132 Stat. at 5221. A district
court cannot reverse that congressional choice. See Rutherford, 146 S. Ct. at 1334
n.7. “The First Step Act does not authorize a sentence reduction below the
statutory minimum sentence that would have applied if the Fair Sentencing Act
had been in effect when the movant committed his offense.” United States v.
Clowers, 62 F.4th 1377, 1381 (11th Cir. 2023); see Caver, 101 F.4th at 429.
CONCLUSION
VanHoesen challenges the district court’s imposition of an eight-year term
of supervised release. We affirm the district court’s judgment imposing this term.
As we said in Bryant, district courts cannot apply § 401(a) of the First Step Act
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retroactively, except to those sentenced after the law’s enactment. Nor may district
courts resentencing a defendant pursuant to the First Step Act invoke Guidelines
amendments that implement § 401(a) to resentence below the mandatory
minimum term that would have applied if the Fair Sentencing Act had been in
effect at the time of the defendant’s offense. The Supreme Court’s decision in
Concepcion does not provide otherwise, because it implicates only discretionary
sentencing decisions. The district court erred in concluding that it had discretion
to impose a term of supervised release below the mandatory minimum of eight
years. We need not remand in this case, however, as the court in the exercise of its
discretion imposed the applicable mandatory minimum term.
For the foregoing reasons, we AFFIRM the district court’s judgment.
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