NOT RECOMMENDED FOR PUBLICATION File Name: 18a0644n.06
No. 17-6001
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
FILED UNITED STATES OF AMERICA, ) Dec 26, 2018 ) DEBORAH S. HUNT, Clerk Plaintiff-Appellee, ) ) ON APPEAL FROM THE v. ) UNITED STATES DISTRICT ) COURT FOR THE EASTERN LAMONT FORTUNE, ) DISTRICT OF TENNESSEE ) Defendant-Appellant. ) )
BEFORE: CLAY and GRIFFIN, Circuit Judges; ZOUHARY, District Judge.*
ZOUHARY, District Judge.
Defendant-Appellant Lamont Fortune was one of several participants in a multi-state
conspiracy to distribute cocaine base (or crack cocaine). A jury convicted Fortune of conspiring
to distribute 280 grams or more of crack cocaine under 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846,
and of distributing 28 grams or more of crack cocaine under 21 U.S.C. §§ 841(a)(1) and (b)(1)(B).
The district court sentenced Fortune to 272 months in prison, followed by ten years of supervised
release. Fortune now challenges both his conviction and sentence on multiple grounds.
For the reasons below, we AFFIRM.
* The Honorable Jack Zouhary, United States District Judge for the Northern District of Ohio, sitting by designation. No. 17-6001, United States v. Fortune
BACKGROUND
In November 2015, Fortune and three codefendants (Heyward Dargan, Jr., Daequon Davis,
and Charles Loftly) were charged with conspiring to distribute crack cocaine. Although his
codefendants accepted plea agreements, Fortune proceeded to trial, where Loftly and Dargan
testified against him. After a two-day trial, the jury found Fortune guilty.
21 U.S.C. § 851 Informations
The Government sought a sentencing enhancement based on Fortune’s prior convictions.
Before trial, the Government filed three Section 851 notices identifying the prior conviction(s) for
an increased punishment. The first relied on a November 1997 cocaine conspiracy conviction
from the Superior Court of Surry County, North Carolina. The second relied on both the November
1997 conviction and a December 1999 possession conviction from the Circuit Court of Grayson
County, Virginia. Two days before trial, the Government filed the third Section 851 notice, which
only referenced the earlier noticed December 1999 conviction. After trial but before sentencing,
the Government “correct[ed] a clerical mistake” regarding the December 1999 conviction,
amending the case number from “CR99000228-00” to “99-167.”
Traffic-Stop Video
On the first day of trial, defense counsel objected to a video from a May 1, 2015 traffic
stop involving Fortune. The stop resulted in a high-speed chase and criminal charges against
Fortune. Defense counsel argued the video should be excluded under Federal Evidence Rule
404(b) as prior-bad-act evidence and because the video was irrelevant and highly prejudicial. The
Government responded that the video was outside the scope of Rule 404(b) because the stop
occurred “within the time of the conspiracy,” and coconspirators would establish Fortune admitted
to throwing crack cocaine out of his car during the chase.
-2- No. 17-6001, United States v. Fortune
The district court agreed with the Government and admitted the video. Further, even if
Rule 404(b) applied, the court found the video was admissible to show preparation or plan. The
court offered to “provide a 404(b) curative instruction to the jurors after the video [was] played if
the lawyers so desire[d],” but neither party requested an instruction.
Testimony at Trial
The Government presented five witnesses at trial: Tennessee Police Investigators and FBI
Task Force Officers Thomas Garrison and Matthew Gryder; codefendants Loftly and Dargan; and
Deputy Sheriff Steven Brant Bottomley. Fortune did not present any witnesses.
Officers Garrison and Gryder
Officers Garrison and Gryder began investigating this crack-cocaine conspiracy around
February 2015. The suspected coconspirators included Fortune, his three codefendants (Loftly,
Dargan, and Davis), Hiram McGirt, and Thomas Newman. Based on surveillance of these
individuals, the officers believed the coconspirators were working together to bring crack cocaine
into Johnson City, Tennessee, before distributing it throughout the area. Although Johnson City
was the “destination city,” Officer Garrison believed the crack cocaine was coming from larger
cities “in North Carolina or perhaps New York.”
Officer Garrison testified that “there wasn’t really anyone at the top” of the conspiracy: the
coconspirators worked as a “group, . . . going to each other whenever they needed drugs.” Because
these individuals were interacting frequently, working with cooperating codefendants was
sometimes difficult for law enforcement.
Loftly and Dargan began cooperating with law enforcement in July 2015, but neither knew
the other was cooperating. Officers orchestrated several controlled buys through these individuals;
two involved Fortune.
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In late July 2015, Loftly surrendered to law enforcement two ounces of crack cocaine
Fortune had fronted him. Seeing an opportunity, the officers arranged for Loftly to meet with
Fortune to pay for the drugs. Before the meeting, the officers searched both Loftly and his vehicle.
They then fitted the vehicle with recording equipment, gave Loftly $2,400 to pay Fortune, and sent
him on his way.
Loftly picked up Fortune at the apartment of Dargan’s grandmother, and the two drove
together to Bristol, Tennessee. Once they arrived, Fortune went inside a house on Georgia Avenue.
After Fortune returned to the car, he told Loftly he “got one and a half for [him].” After the
exchange, the officers met with Loftly and retrieved about 1.5 ounces of crack cocaine. Audio and
video recordings of these events were presented to the jury.
The next evening, the officers arranged for Loftly to meet with Fortune again to pay for
the new 1.5 ounces of crack cocaine. The officers repeated the search of Loftly and his vehicle.
Loftly then drove to the same Georgia Avenue house in Bristol. Once Loftly arrived, Fortune
walked up to his vehicle and money was exchanged. Recordings of these events were also
presented to the jury. According to Officer Garrison, “you can’t see everything great” in the video,
but “you can hear Mr. Fortune and you can see money exchange hands.”
Codefendants
Both Loftly and Dargan pled guilty to the underlying drug conspiracy and testified in hopes
of receiving “some leniency” at sentencing. They disclosed their extensive criminal histories and
acknowledged they were housed in the same jail pod before trial.
Loftly and Dargan also discussed, at length, the nature of the conspiracy and Fortune’s role
in it. They testified that Fortune became involved in the drug ring around September 2014. They
believed Fortune was getting crack cocaine from North Carolina, “sometimes weekly . . .
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[sometimes] biweekly.” Fortune would usually bring back several ounces on each trip because
the coconspirators “all had to buy a couple of ounces” from him. Loftly estimated he purchased
between 500 and 600 grams of crack cocaine from Fortune between September 2014 and July
2015, and Dargan estimated he made ten to fifteen purchases during a similar time period. Loftly
further discussed the two controlled buys involving Fortune.
Finally, Loftly and Dargan testified that on the evening of May 2, 2015, several of the
coconspirators were at Loftly’s house watching a boxing match when Fortune arrived. Loftly and
Dargan testified that, after Fortune arrived, he admitted to throwing out eight to nine ounces of
crack cocaine during the high-speed chase the previous day. Both Loftly and Dargan were
expecting crack cocaine from Fortune at the time. But due to the chase, Fortune was forced to
“sho[o]t the crack cocaine out the window” and was unable to make the delivery as expected.
Deputy Bottomley
Deputy Bottomley was the officer that stopped Fortune on May 1, 2015. His testimony
was short. The stop occurred in Carroll County, Virginia, near the North Carolina border. Deputy
Bottomley explained that, as he approached Fortune’s vehicle, Fortune sped off, resulting in a
chase reaching speeds up to 122 mph. The Government played video clips of the stop and chase.
The clips showed that, at times, Fortune “got pretty far ahead” of Deputy Bottomley, and that
Deputy Bottomley got stuck behind other vehicles. Deputy Bottomley acknowledged there was
“no way [he] could tell” if Fortune threw anything out of his car, and nothing was recovered.
When the chase ended, Deputy Bottomley walked over to Fortune’s car. He smelled burnt
marijuana and witnessed Fortune eating marijuana. Fortune was subsequently arrested. Fortune
was released the following day, on May 2, 2015—i.e., the day he joined Loftly and Dargan to
watch the boxing match.
-5- No. 17-6001, United States v. Fortune
Sentencing
Before sentencing, Fortune objected to a recommended enhancement under USSG § 3C1.2
for reckless endangerment. The district court overruled the objection, finding Loftly, Dargan, and
Deputy Bottomley’s testimony about the May 2015 chase was sufficient to support the
enhancement. The district court calculated Fortune’s Guidelines range as 262 to 327 months, with
a 240-month mandatory minimum. After hearing arguments from the Government and Fortune,
the district court imposed a sentence of 272 months.
DISCUSSION
Admissibility of the Traffic-Stop Evidence
Fortune first argues the district court erred in admitting evidence of the May 2015 traffic
stop and high-speed chase because it was extrinsic to the charged conspiracy and was admitted
solely to show he “had connections with marijuana and therefore was a drug dealer.” Although
Loftly and Dargan testified that Fortune admitted to throwing out crack cocaine during the chase,
Fortune argues this evidence was “minimal and not credible” because Loftly and Dargan were
“motivated to implicate [him] in a way that pleased the government.” Further, even if the traffic-
stop evidence were admissible under Rule 404(b), Fortune argues its probative value was
substantially outweighed by the risk that the jury would convict him not based on evidence of the
conspiracy, but because he has the character of a drug dealer and once evaded arrest.
This Court generally “reviews all evidentiary rulings—including constitutional challenges
to evidentiary rulings—under the abuse-of-discretion standard.” United States v. Schreane,
331 F.3d 548, 564 (6th Cir. 2003). A district court abuses its discretion when it “make[s] errors
of law or clear errors of factual determination.” United States v. Payne, 437 F.3d 540, 544 (6th
Cir. 2006) (citation omitted). But even where a district court errs in admitting evidence, this Court
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will not reverse “unless [the] error affects a substantial right—that is, if the error had a substantial
and injurious effect or influence on the jury’s verdict.” United States v. Shannon, 803 F.3d 778,
785 (6th Cir. 2015) (citation and internal quotation marks omitted). “In determining whether an
error is harmless, the reviewing court ‘must take account of what the error meant to [the jury], not
singled out and standing alone, but in relation to all else that happened.’” United States v. Hardy,
228 F.3d 745, 751 (6th Cir. 2000) (alteration in original) (quoting Kotteakos v. United States, 328
U.S. 750, 764 (1946)).
Rule 404(b) prohibits admitting “[e]vidence of a crime, wrong, or other act . . . to prove a
person’s character in order to show that[,] on a particular occasion[,] the person acted in
accordance” with that character trait. Such evidence, however, may still be admissible to show
“motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of
accident.” Id.
“Rule 404(b) is not implicated when evidence of prior acts is ‘part of a continuing pattern
of illegal activity’ or is ‘inextricably intertwined’ with the indicted crime.” United States v.
McGee, 510 F. App’x 377, 381 (6th Cir. 2013) (quoting United States v. Barnes, 49 F.3d 1144,
1149 (6th Cir. 1995)). To qualify as intrinsic evidence, the conduct must have “a causal, temporal
or spatial connection with the charged offense.” Hardy, 228 F.3d at 748. “Typically, such
evidence is a prelude to the charged offense, is directly probative of the charged offense, arises
from the same events as the charged offense, forms an integral part of a witness’s testimony, or
completes the story of the charged offense.” Id. To be admissible, intrinsic evidence, like all
evidence, must satisfy the balancing requirement of Rule 403: its probative value must not be
substantially outweighed by a risk of unfair prejudice to the defendant. See United States v. Adams,
722 F.3d 788, 812 (6th Cir. 2013).
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Here, the district court did not err by admitting the traffic-stop evidence as intrinsic
evidence because testimony from multiple witnesses established the stop was temporally, spatially,
and causally connected to the charged conspiracy. See Hardy, 228 F.3d at 748. First, the stop
occurred while Fortune was actively involved in the conspiracy. Second, testimony from Officer
Garrison, Loftly, and Dargan provided a spatial and causal link between the conspiracy and the
stop near the North Carolina border. Their testimony indicated that the crack cocaine involved in
the conspiracy was coming from North Carolina, and that Fortune regularly made trips between
Tennessee and North Carolina for the purpose of obtaining conspiracy-related crack cocaine.
According to Loftly and Dargan, that is exactly what Fortune was doing at the time of the stop.
This testimony is sufficient to show the traffic stop was “inextricably intertwined” with the
charged conspiracy because it “explain[s]” and “tend[s] to establish the charged conspiracy itself.”
Hardy, 228 F.3d at 748–50. Contrary to Fortune’s assertions, time is not the only factor connecting
the stop and the conspiracy—there is also an overlap in geography, actors, and purpose.
To the extent Fortune argues this evidence is insufficient because Loftly and Dargan
testified under cooperation agreements, his argument is unpersuasive. First, this Court has
repeatedly found testimony from cooperating witnesses sufficient to connect other wrongful
conduct with a charged offense. See, e.g., United States v. Gonzalez, 501 F.3d 630, 633–36, 638–
40 (6th Cir. 2007); Barnes, 49 F.3d at 1146, 1149. Second, Fortune was given an opportunity to
cross-examine Loftly and Dargan. The jury had an opportunity to evaluate and weigh this
testimony before reaching a verdict.
Fortune complains that “[t]he district did not explain how it arrived at the conclusion that
the traffic stop and flight were intrinsic to the charged conspiracy,” emphasizing that “the finding
was made before any testimony potentially connecting the events to the conspiracy.” But both the
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Government and defense counsel summarized Loftly and Dargan’s anticipated testimony before
the district court made its ruling. The reasons for the ruling are clear from the record.
Nonetheless, Fortune argues the district court erred in admitting the traffic-stop evidence
under Rule 403 because it had “little to no probative value,” and any value was substantially
outweighed by the risk that it would unfairly bias the jury against him. This Court reviews Rule
403 determinations for abuse of discretion, “maximiz[ing] the probative value of the challenged
evidence and minimiz[ing] its potential for unfair prejudice.” United States v. Lloyd, 462 F.3d
510, 516 (6th Cir. 2006).
Fortune’s central argument is that the video and Deputy Bottomley’s testimony had little
probative value because Fortune “did not deny the stop or flight occurred,” and neither the video
nor Deputy Bottomley’s testimony corroborated that he threw crack cocaine from his car. But
Fortune did not offer to stipulate that the stop occurred. Further, this evidence corroborates
testimony about not only where, when, and how the stop occurred, but also Fortune’s role in the
conspiracy.
Finally, the video was short, as was Deputy Bottomley’s testimony. The parties also spent
limited time questioning Loftly and Dargan about the incident. The primary focus at trial was the
relationship between the coconspirators, Fortune’s role in the conspiracy, and the two controlled
buys. Considering the totality of the record, even if the district court erred in admitting this
evidence, the error was harmless as it did not “materially affect[]” the verdict. See United States
v. Childs, 539 F.3d 552, 559 (6th Cir. 2008) (citation omitted).
Increased Mandatory Minimum
Next, Fortune argues the district court erred in applying an increased mandatory minimum
based on his December 1999 conviction because the Government failed to strictly comply with
-9- No. 17-6001, United States v. Fortune
21 U.S.C. § 851(a). “The requirements delineated in § 851 are mandatory, and a district court
cannot enhance a defendant’s sentence based on a prior conviction unless the government satisfies
them.” United States v. King, 127 F.3d 483, 487 (6th Cir. 1997). Section 851 states that “[n]o
person who stands convicted of an offense under this part shall be sentenced to increased
punishment by reason of one or more prior convictions, unless before trial, . . . the United States
attorney files an information” providing “the previous convictions to be relied upon.” 21 U.S.C.
§ 851(a)(1) (emphasis added). However, “[c]lerical mistakes in the information may be amended
at any time prior to the pronouncement of sentence.” Id. (emphasis added).
Fortune contends the Government’s failure to provide the correct case number for his prior
conviction was more than a clerical mistake. Because this mistake was not corrected until after
his trial, Fortune argues he did not receive sufficient notice under Section 851.
Challenges to the sufficiency of a Section 851 information are generally reviewed de novo.
United States v. Pritchett, 496 F.3d 537, 541 (6th Cir. 2007). But Fortune failed to challenge the
timeliness or sufficiency of the Section 851 information before the district court. Therefore, we
review for plain error. United States v. Gonzalez, 512 F.3d 285, 288 (6th Cir. 2008). Fortune’s
challenge fails under either standard.
Section 851 does not define clerical mistake or describe “the specificity with which the
government must identify prior convictions.” United States v. Layne, 192 F.3d 556, 576 (6th Cir.
1999). This Court has recognized, however, that Section 851 “was designed to satisfy the
requirements of due process and provide the defendant with reasonable notice and an opportunity
to be heard regarding the possibility of an enhanced sentence.” King, 127 F.3d at 489 (citation
and internal quotation marks omitted). “So long as the defendant had reasonable notice of the
government’s intent to rely on a particular conviction to seek an enhancement, as well as the
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opportunity to contest the enhancement, we have regularly affirmed enhanced sentences despite
the government’s fumbling of the § 851(a) requirements.” United States v. Brown, 737 F. App’x
741, 749 (6th Cir. 2018) (citing cases).
In this case, the Government provided Fortune with reasonable notice that it intended to
rely on his December 1999 conviction to enhance his sentence. The second and third notices
submitted before trial accurately disclosed the date of the conviction, the offense, the date of the
offense, the relevant court, and Fortune’s ultimate sentence. The only error was the reported case
number. Importantly, Fortune does not assert this error actually confused or misled him. Nor does
the record provide a basis for such a finding: this was Fortune’s only conviction in 1999, and his
only conviction in Grayson County. Considering the wealth of other accurate details disclosed,
providing the wrong case number was a simple clerical mistake. Finding more would “elevat[e]
form over substance,” a result this Court has repeatedly stated should be avoided. See, e.g., King,
127 F.3d at 489.
Further, at sentencing, the district court asked Fortune if, “on December 3, 1999, in the
Circuit Court for Grayson County, Virginia” he was convicted of possession with the intent to
distribute. The district court warned Fortune that “[a]ny challenge [to the conviction] . . . not made
before the sentence is imposed may not be raised hereafter.” Still, Fortune responded “[y]es” and
raised no challenges to the conviction.
Fortune asserts this colloquy did not render the error harmless because “the district court
made the same error” at sentencing as the Government made in its earlier filing—stating the wrong
case number. But the district court stated the case number was “CR99000167-00”—the same case
number reported in the presentence report and the same case number, in long-form, as supplied in
the Government’s amended notice (“99-167”).
-11- No. 17-6001, United States v. Fortune
Fortune also argues the district court violated his constitutional rights by applying the
increased mandatory minimum because the prior conviction was not charged in the Indictment or
found beyond a reasonable doubt by the jury. But, as Fortune recognizes, this Court has repeatedly
rejected this argument. E.g., United States v. Mack, 729 F.3d 594, 609 (6th Cir. 2013).
USSG § 3C1.2 Enhancement
Fortune next challenges the district court’s enhancement of his sentence under USSG
§ 3C1.2, based on the May 2015 high-speed chase. Section 3C1.2 provides for a two-level
enhancement “if the defendant recklessly created a substantial risk of death or serious bodily injury
to another person in the course of fleeing from a law enforcement officer.” The enhancement
applies if “this conduct occurred during the commission of the offense of conviction, in preparation
for that offense, or in the course of attempting to avoid detection or responsibility for that offense.”
United States v. Woods, 604 F.3d 286, 292–93 (6th Cir. 2010) (citation omitted). “The burden is
on the government to prove, by a preponderance of the evidence, that a particular sentencing
enhancement applies.” United States v. Dupree, 323 F.3d 480, 491 (6th Cir. 2003).
This Court reviews “the district court’s application of the . . . Sentencing Guidelines de
novo and the district court’s findings of fact at sentencing for clear error.” United States v. Dial,
524 F.3d 783, 785 (6th Cir. 2008) (citation omitted). The “question of what constitutes [reckless]
endangerment is a mixed question of law and fact.” United States v. Hazelwood, 398 F.3d 792,
796 (6th Cir. 2005). But because the inquiry is “highly fact-based,” this Court gives “significant
deference to the district court.” Id.
Here, Fortune does not dispute that the high-speed chase occurred or that he recklessly
created a substantial risk to others during the chase. He challenges only whether the Government
established a nexus between the chase and the charged conspiracy. Based on the evidence
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introduced at trial, the district court found that “[t]he credible testimony of codefendants Loftly
and Dargan satisf[ied] the court by a preponderance of the evidence that [Fortune] threw
conspiracy-related cocaine out of his car during the flight, and that he was thus ‘fleeing from a law
enforcement officer in the course of attempting to avoid detection or responsibility’ for an offense
of conviction.”
Fortune challenges the district court’s credibility determination. But a “sentencing court’s
credibility determinations, like other factual findings, must be accepted on review unless shown to
be clearly erroneous.” United States v. Hurst, 228 F.3d 751, 761 (6th Cir. 2000). Fortune fails
here as well. Because the district court’s determination was “plausible in light of the record viewed
in its entirety,” it was not clearly erroneous. Anderson v. City of Bessemer City, 470 U.S. 564,
573–74 (1985). Dargan and Loftly’s credible testimony was sufficient to support the enhancement.
Substantive Reasonableness of Sentence
Fortune’s final challenge is that his sentence is substantively unreasonable because (1) it is
“overwhelmingly based upon drug quantity,” and (2) the district court failed to take into account
his age. Both arguments are unpersuasive.
This Court reviews the substantive reasonableness of a sentence “under a deferential abuse-
of-discretion standard.” Gall v. United States, 552 U.S. 38, 41 (2007). Fortune carries the burden
of showing his sentence is substantively unreasonable. United States v. Woodard, 638 F.3d 506,
510 (6th Cir. 2011). Because his sentence falls within the Guidelines range, it is presumptively
reasonable. United States v. Vonner, 516 F.3d 382, 389 (6th Cir. 2008) (en banc). Fortune fails
to rebut this presumption.
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Contrary to Fortune’s assertions, nothing in the record reflects that the district court placed
“overwhelming” weight on drug quantity. Rather, the district court properly considered all of the
Section 3553(a) factors, including Fortune’s “long criminal history” and “long history of violating
[his] conditions of supervised release or probation.” The “thing that really bother[ed]” the district
court was Fortune’s limited work history outside of selling drugs, and the fact he “seem[ed] very
comfortable” in following a career as a drug dealer.
There is no denying that drug quantity played a role in the sentence. But as the Government
points out, USSG § 2D1.1 specifically ties a defendant’s drug quantity to the length of his sentence,
and Fortune’s base-offense level was calculated under this Guideline. The district court was
required to consider the Guidelines range when selecting Fortune’s sentence. See 18 U.S.C.
§ 3553(a)(4)(A). Simply put, Fortune fails to show the district court abused its discretion by
declining to vary downward.
Fortune argues his sentence is substantively unreasonable because the district court failed
to consider the likelihood of recidivism after age fifty, relying on United States v. Payton, 754 F.3d
375 (6th Cir. 2014). But that case is inapposite. First, the district court in Payton deviated
substantially from the advisory Guidelines range. Id. at 378. Fortune received a Guidelines
sentence. Second, the defendant in Payton raised the age arguments before the district court. Id.
The only mention of Fortune’s age at sentencing was a passing reference by defense counsel that
an above-the-minimum sentence was “extreme . . . for a young man like” Fortune. Finally, Payton
found the recidivism evidence sufficient to require a sentencing judge to explain more carefully
why a defendant “remains likely to engage in violent [crime] between the age of seventy and
ninety.” Id. at 379 (emphasis added). Fortune’s sentence will expire well before he turns seventy.
This Court has previously declined to extend Payton on similar grounds. See, e.g., United States
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v. Henry, 722 F. App’x 496, 501 (6th Cir. 2018); United States v. Taylor, 800 F.3d 701, 715–16
(6th Cir. 2015).
CONCLUSION
For these reasons, the judgment of the district court is AFFIRMED.
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