United States v. Austin ( 2021 )

United States Court of Appeals
For the First Circuit
No. 19-2257
UNITED STATES,
Appellee,
v.
DAMON AUSTIN,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph A. DiClerico, Jr., U.S. District Judge]
Before
Lynch and Selya, Circuit Judges,
and Katzmann, Judge.
Andrew Levchuk for appellant.
Seth R. Aframe, Assistant United States Attorney, with whom
Scott W. Murray, United States Attorney, was on brief, for
appellee.
March 12, 2021

Of the United States Court of International Trade, sitting
by designation.
KATZMANN, Judge. Defendant-appellant Damon Austin
pleaded guilty to two counts of unlawful firearm possession by a
prohibited person in violation of 18 U.S.C. §§ 922(g) and
924(a)(2), and was sentenced to imprisonment. Following Austin's
plea, the Supreme Court issued a decision in Rehaif v. United
States, 139 S. Ct. 2191 (2019), which held that a conviction for
unlawful possession of a firearm requires the government to prove
that the defendant knew he had the relevant status prohibiting
possession. Austin alleges on appeal that, under Rehaif, the
district court committed plain error by failing to inform him at
his plea colloquy that conviction for violation of 18 U.S.C. §§
922(g) and 924(a)(2) required the government to prove that he knew
he was prohibited from possessing firearms. Separately, Austin
alleges that the search warrant issued for his residence was
unsupported by probable cause, and that the district court erred
in denying without an evidentiary hearing his motion to suppress
evidence resulting from the execution of that warrant.
We determine that the search warrant issued for Austin's
residence was supported by probable cause and affirm the district
court's denial of Austin's motion to suppress. We also conclude,
in accord with our recent decisions in United States v. Patrone,
985 F.3d 81 (1st Cir. 2021), and United States v. Farmer, No. 19-
1603, 2021 WL 567419 (1st Cir. Feb. 16, 2021), that the district
court did not plainly err by accepting Austin's guilty plea.
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I.
Because this appeal follows a guilty plea, we draw the
facts "from the change-of-plea colloquy, the Presentence Report
(PSR), and the transcript of the sentencing hearing." United
States v. Rossignol, 780 F.3d 475, 476 (1st Cir. 2015) (citing
United States v. Cintrón–Echautegui, 604 F.3d 1, 2 (1st Cir.
2010)). Below, Austin stipulated as part of his plea agreement
that if the case proceeded to trial, the government would introduce
evidence of specified facts that would prove the elements of the
offenses beyond a reasonable doubt.
On April 14, 2018, Somersworth, New Hampshire law
enforcement officials were notified of an altercation involving a
firearm. Responding officers, among them Officer Anthony
DeFrancesco, were informed that Austin had threatened Christopher
Brown with a handgun outside Brown's residence. Brown informed law
enforcement that Austin was his cocaine supplier and had recently
been staying at Brown's home. Brown's wife had, on the morning of
April 14, 2018, requested that Austin leave the residence. Austin
initially refused, but at some point left Brown's home. He later
returned in a vehicle driven by Tanya Phillips and engaged in an
argument with Brown, during which Austin threatened Brown with a
loaded firearm before driving away. Brown informed the responding
officers that he recognized the firearm as a Glock which Austin
had previously acquired in exchange for crack cocaine.
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Officers Joseph Geary and Alexander Mulcahey located
Phillips' vehicle, and conducted a felony traffic stop. Austin
and Phillips were removed from the vehicle, and Officer Geary
located a loaded magazine on Austin's person. Austin advised the
officers that there was a firearm in the front seat of the vehicle,
which Officer DeFrancesco, who had arrived during the arrest
process, observed in plain view and retrieved. A search of
Austin's person incident to arrest located two plastic containers
of hash butane oil. Prior to being removed from the scene, Austin
revealed in a post-Miranda statement that he was a convicted felon.
During booking, Austin further stated that he was a member of the
Mattapan Avenue Crips street gang.
After the arrests of Phillips and Austin, Officer
DeFrancesco prepared and submitted an affidavit in support of a
search warrant application for Phillips' and Austin's shared
residence. He swore to the foregoing facts, as well as to the
fact that the firearm located in Phillips' vehicle was determined
to be stolen. Officer DeFrancesco further stated that Brown had
informed him that Austin (1) sold crack, cocaine and marijuana;
(2) made crack at the residence he shared with Phillips; (3)
recently sold Brown cocaine at the residence; (4) within the prior
two days had possessed two ounces of cocaine and two ounces of
crack at the residence; and (5) had multiple firearms stored at
the residence. In particular, Officer DeFrancesco affirmed that
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Brown described two black safes located at the residence, one in
the dining room and one in the bedroom, which Brown claimed Austin
used to store guns, cocaine, and money.
Officer DeFrancesco's affidavit also recounted
statements made by Phillips after she knowingly waived her Miranda
rights. Among them, Officer DeFrancesco testified that Phillips
confirmed the existence of two safes in the residence she shared
with Austin: one in the living room which belonged to Austin, and
one in the bedroom in which she stored paperwork. Finally, the
affidavit recounted Austin's stated membership in the Mattapan
Avenue Crips gang, and his previous felony conviction for assault
and battery.
On the strength of Officer DeFrancesco's affidavit, the
search warrant was granted. The search took place on April 14,
2018, the same day as Austin's arrest, and resulted in the seizure
of seven additional firearms, six of which had traveled in
interstate or foreign commerce. Austin was subsequently indicted
for two counts of possession of a firearm by a prohibited person
in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2): the first
for possession of the firearm retrieved from the front seat of
Phillips' vehicle, and the second for possession of six firearms
retrieved during the execution of the April 14 search warrant.
On December 31, 2018, Austin moved to suppress the
evidence obtained during the execution of the April 14 search
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warrant, alleging that the affidavit was not supported by probable
cause. Austin specifically argued that Officer DeFrancesco failed
to "demonstrate that Brown was a reliable informant" and to
"corroborate his basis of knowledge for drugs and firearms being
at the . . . residence." In so arguing, Austin relied on case law
regarding the verification of tips from confidential informants.
See, e.g., United States v. Ramírez-Rivera, 800 F.3d 1, 27 (1st
Cir. 2015), cert denied, 136 S. Ct. 917 (2016), abrogated on other
grounds by United States v. Leoner-Aguirre, 939 F.3d 310 (1st Cir.
2019). Austin further contended that Officer DeFrancesco omitted
contradictory information from his affidavit.
The district court declined to hold an evidentiary
hearing on the alleged omissions in Officer DeFrancesco's
affidavit and denied Austin's motion to suppress, finding that the
warrant was supported by probable cause. On January 31, 2019,
Austin pleaded guilty to both counts of the indictment. The
Supreme Court issued its decision in Rehaif on June 21, 2019. On
November 19, 2019 (with judgment entering on November 25, 2019),
the district court sentenced Austin to a term of imprisonment of
eighty-four months, to be served concurrently on both counts, and
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to be followed by three years on supervised release. Austin
appealed.1
II.
On appeal, Austin contends that the district court erred
in denying his motion to suppress because the search warrant was
not supported by probable cause. As noted above, Austin argues
that Brown was in essence a confidential informant, and that the
information he provided was therefore insufficient basis for a
search warrant without further corroboration. In so doing, Austin
rejects the characterization of Brown as a victim or percipient
witness and disputes the corroborative sufficiency of Phillips'
admissions in custody.
We review de novo the district court's conclusion that
the facts of the search warrant affidavit constitute probable
cause. United States v. Greenburg, 410 F.3d 63, 66 (1st Cir. 2005)
(quoting United States v. Barnard, 299 F.3d 90, 92–93 (1st Cir.
2002)). Our review is limited to the "facts and supported
opinions" set out within the four corners of the affidavit. United
1 In his plea agreement, Austin reserved his right to appeal
the denial of his suppression motion, as well as any issue "based
upon new legal principles enunciated in Supreme Court or First
Circuit case law after the date of [his] Plea Agreement that have
retroactive effect."
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States v. Joubert, 778 F.3d 247, 252 (1st Cir. 2015); United States
v. Vigeant, 176 F.3d 565, 569 (1st Cir. 1999).
A search warrant must be supported by "probable cause to
believe that (1) a crime has been committed, and (2) that
enumerated evidence of the [crime] will be found at the place to
be searched[.]'" Joubert, 778 F.3d at 251 (quoting United States
v. Hicks, 575 F.2d 130, 136 (1st Cir. 2009)). Probable cause
exists where there is a "fair probability that . . . evidence of
a crime will be found in a particular place." United States v.
Silva, 742 F.3d 1, 7 (1st Cir. 2014) (quoting Hicks, 575 F.2d at
136). The fair probability required is only that "on which
'reasonable and prudent [people,] not legal technicians, act.'"
United States v. Adams, 971 F.3d 22, 32 (1st Cir. 2020) (quoting
Florida v. Harris, 568 U.S. 237, 244 (2013) (alteration in
original)).
We determine, as did the district court, that Officer
DeFrancesco's affidavit was sufficient support for the search
warrant issued. Contrary to Austin's argument, Brown was not a
confidential informant whose statements to the police demanded
additional "information from which a magistrate can credit [his]
credibility." United States v. Gifford, 727 F.3d 92, 99 (1st Cir.
2013) (citing Barnard, 299 F.3d at 93 (1st Cir. 2002)). Rather,
Brown was the victim of Austin's reported threat, and a percipient
witness to Austin's possession of contraband at the residence he
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shared with Phillips. As such, Brown's "uncorroborated testimony"
can and does support a finding of probable cause absent
"circumstances that would raise a reasonably prudent officer's
antennae." Acosta v. Ames Dep't. Stores, Inc., 386 F.3d 5, 10
(1st Cir. 2004).
Austin's reliance on case law addressing the credibility
of confidential informants is inapposite. In Ramírez-Rivera, the
court rejected a tip from an unnamed confidential informant who
had no apparent firsthand knowledge of the information he conveyed,
and provided no substantial details corroborating the location of
the proposed search beyond the general location of the house and
its external appearance. 800 F.3d at 28. In contrast, Brown was
identified in the affidavit and claimed detailed firsthand
knowledge of Austin's home and the items it contained.
Furthermore, Brown's account was corroborated in part by Phillips'
statement that there was a safe that Austin alone utilized in the
residence they shared. Clearly this was not the kind of vague and
uncorroborated tip at issue in Ramírez-Rivera.
Indeed "[a] specific, first-hand account of possible
criminal activity is the hallmark of a credible tip." Greenburg,
410 F.3d at 67. The information provided by Brown, and recounted
by Officer DeFrancesco in his affidavit, was exactly that.
Moreover, and contrary to Austin's own assertions, we have found
that "[w]hen a self-incriminating statement is provided by an
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informant whose identity is known to the authorities, the statement
is more likely to be true because of the risk inherent in making
such a statement." Id. at 67–68 (citing United States v. Harris,
403 U.S. 573, 583–84 (1971)).
Nor is there any reason for Brown's assertions to "raise
a reasonably prudent officer's antennae." Acosta, 386 F.3d at 10.
We have already rejected Austin's argument that Brown's admitted
criminal behavior renders him a less-credible witness. We
similarly find Austin's argument from United States v. Tanguay,
787 F.3d 44 (1st Cir. 2015), uncompelling, given that Tanguay's
reference to the reliability of a "law-abiding eyewitness" was in
contrast to that of a professional informant. Compare Tanguay,
787 F.3d at 50, with United States v. Blount, 123 F.3d 831, 835–
36 (5th Cir. 1997), and United States v. Campbell, 732 F.2d 1017,
1019 (1st Cir. 1984).
Finally, we reject Austin's contention that Brown's
animosity toward Austin should have raised the suspicions of
Officer DeFrancesco, the magistrate, or the district court. Taken
together with Brown's self-incriminating statements, his firsthand
and specific knowledge, and Phillips' corroboration of his
assertions, the fact of Brown's recent conflict with Austin is
poor evidence of his unreliability. We therefore conclude that
the district court did not err in finding that the information
Brown provided to DeFrancesco was credible and reliable, and that
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the warrant affidavit was sufficient to demonstrate a "fair
probability that . . . evidence of a crime" would be found in
Austin's residence. Silva, 742 F.3d at 7. Accordingly, we affirm
the district court's conclusion that the search warrant was
supported by probable cause.
III.
In addition to challenging the district court's denial
of his motion to suppress, Austin alleges that the district court
erred by failing to grant an evidentiary hearing pursuant to Franks
v. Delaware, 438 U.S. 154 (1978).2 Austin argues that Officer
DeFrancesco "omitted material information" sufficient to cast
doubt on his affidavit, and that Austin was therefore entitled to
a hearing. Specifically, Austin points to what he argues is the
apparent conflict between the affidavit's account of statements
made by Phillips and the reports from Special Agent Kristi
McPartlin and Officer Geary that Phillips invoked her Miranda
rights. In fact, as we later say, we see no such conflict. Austin
Below, in seeking an evidentiary hearing, Austin contended
2
that the Leon good-faith doctrine establishing an exception to the
exclusionary rule should not apply because, in his view, the
affidavit omitted certain information. United States v. Leon, 468
U.S. 897, 922 (1984). Austin did not cite Franks v. Delaware or
ask specifically for a Franks hearing. While the Government argues
that Austin did not preserve the Franks issue below, we note that
Austin did request an evidentiary hearing for his motion to
suppress, and that the district court treated this request as an
invocation of Franks, and proceeded accordingly in its analysis.
We therefore consider the issue on appeal.
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also points to the affidavit's omission of Austin's statement that
he traveled to Brown's residence to take custody of a gaming
console and suggests that this statement contradicts Brown's
failure to mention a console.
We review the denial of a Franks hearing for clear error.
United States v. Graf, 784 F.3d 1, 6 (1st Cir. 2015) (citing United
States v. Reiner, 500 F.3d 10, 14 (1st Cir. 2007)). Clear error
is present where "we are left with the definite and firm conviction
that a mistake has been committed." Id. (citing Hicks, 575 F.3d
at 138 (1st Cir. 2009)).
Under Franks, a defendant is entitled to an evidentiary
hearing to test the veracity of a warrant affidavit if he can make
a substantial showing that (1) the affiant intentionally or with
reckless disregard for the truth included a false statement in the
affidavit, or omitted information from the affidavit; and (2) such
false statement or omitted information was material to the probable
cause inquiry. Tanguay, 787 F.3d at 48-49 (citing Franks, 438
U.S. at 155-56); United States v. Barbosa, 896 F.3d 60, 68–69 (1st
Cir. 2018).
The district court found that Austin failed to make such
substantial showing. We agree. As the district court noted, none
of the reports Austin identifies as containing contradictory facts
omitted from Officer DeFrancesco's affidavit had been prepared by
the time the affidavit was prepared and submitted. Information
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that did not yet exist could not have been intentionally or
recklessly omitted by Officer DeFrancesco and does not undermine
the presumptive validity of his affidavit. See Barbosa, 896 F.3d
at 67, 68–69.
Even if the reports had existed at the relevant time,
Austin does not make a substantial showing that their contents
would have been material to a warrant application. First, Austin
provides no basis for concluding that Brown's statements about the
altercation with Austin and Austin's possession of contraband are
meaningfully inconsistent with Austin's assertion that he hoped to
collect a gaming console from Brown. Second, accounts of Phillips
invoking her Miranda rights upon arrest do not preclude her
subsequent waiver of those rights, and there is nothing in the
record to suggest that Phillips' statements to Officer DeFrancesco
were anything but properly obtained.3
We conclude that the district court did not clearly err
in finding that Austin had not at any stage made a substantial
showing that Officer DeFrancesco's affidavit was materially false
or omitted material facts. We therefore reject Austin's claim
that he was entitled to a Franks hearing and affirm the district
court's denial of his request.
3 It is well-established that a suspect's invocation of
Miranda does not result in "a blanket prohibition against the
taking of voluntary statements or a permanent immunity from further
interrogation." Michigan v. Mosley, 423 U.S. 96, 102 (1975).
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IV.
As we have noted, on June 21, 2019, nearly five months
after the hearing in which the district court accepted Austin’s
guilty plea, the Supreme Court held in Rehaif that "in a
prosecution under 18 U.S.C. § 922(g) and § 924(a)(2), the
Government must prove both that the defendant knew he possessed a
firearm and that he knew he belonged to the relevant category of
persons barred from possessing a firearm." 139 S. Ct. at 2200.
In other words, the charges against Austin involved both a
possession element and a status element. Five months after the
Rehaif decision, Austin was sentenced to eighty-four months in
prison followed by three years on supervised release.
Austin now alleges for the first time that his guilty
plea must be vacated due to the district court's failure to inform
him of the status element of his charges at the plea colloquy, and
the absence of the element in his indictment, which each prevented
his plea from being voluntary and intelligent. Austin's central
argument is that his judgment of conviction should be vacated
because "a standalone Rehaif error [at plea colloquy] satisfies
plain error review because such an error is structural." United
States v. Gary, 954 F.3d 194, 200 (4th Cir. 2020), cert. granted,
No. 20-444, 2021 WL 77245 (U.S. Jan. 8, 2021). Secondarily, Austin
argues that he was prejudiced by the district court's omission of
the status element at his plea colloquy because "[p]roving a
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defendant's subjective knowledge that he or she is violating the
law makes a case far more difficult for the government" and allows
additional defenses, which Austin did not know were available at
the time of his guilty plea. Finally, Austin contends that the
indictment's failure to allege knowledge of status violated his
substantial rights.
We review each of Austin's arguments under a plain error
standard. See Patrone, 985 F.3d at 84 ("Where, as here, a
defendant waits until an appeal to raise [a challenge to the plea
colloquy], we review that challenge only for plain error." (first
citing United States v. Dominguez Benitez, 542 U.S. 74, 80 (2004);
then citing United States v. Burghardt, 939 F.3d 397, 402–03 (1st
Cir. 2019); and then citing United States v. Hernández-Maldonado,
793 F.3d 223, 226 (1st Cir. 2015))); United States v. Lara, 970
F.3d 68, 86 (1st Cir. 2020) (applying the plain error standard
where appeal challenges "Rehaif-based defect in indictment").
Under a plain error standard, Austin must show "(1) an error, (2)
that is clear or obvious, (3) which affects his substantial rights
. . . , and which (4) seriously impugns the fairness, integrity,
or public reputation of the proceeding." United States v. Correa-
Osorio, 784 F.3d 11, 18 (1st Cir. 2015). In light of Rehaif, the
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first two prongs of plain error review are satisfied. See, e.g.,
Patrone, 985 F.3d at 85.
We have considered and rejected Austin's argument from
Gary that the district court's failure to inform him of Rehaif's
status element constitutes structural error and per se satisfies
the third prong of plain error review.4 See, e.g., Patrone, 985
F.3d at 86 (finding that no error in structure results from the
failure to advise a defendant of the status element of Rehaif);
Farmer, 2021 WL 567419, at *4 (reiterating the absence of
structural error where the status element was omitted from a plea
colloquy). Thus, we consider only Austin's argument that he was
prejudiced by the district court's failure to state the status
element at his plea colloquy. To satisfy the third prong of plain
error review on such grounds, Austin must demonstrate a reasonable
probability that he would not have pled guilty had the district
court informed him of the government's obligation to prove the
knowledge of status element of Rehaif. Burghardt, 989 F.3d at
403; Farmer, 2021 WL 567419, at *3.
We conclude that Austin has not demonstrated such
reasonable probability. Importantly, Austin misconstrues the
nature of the status element. Austin suggests that Rehaif would
4 We note that the Supreme Court has granted certiorari in
the United States' appeal of the decision in Gary. This pending
appeal does not impact our holdings in Patrone and Farmer.
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have obligated the government to prove his "subjective knowledge
that he [was] violating the law." This is not the case. Rather,
Rehaif imposes a scienter of status requirement: it would require
the government to prove Austin knew he was a felon. See, e.g.,
Burghardt, 939 F.3d at 400 (describing the omitted Rehaif element
as the defendant's knowledge that he had been previously convicted
of a crime "punishable by imprisonment for a term exceeding one
year"). Given Austin's own statements to law enforcement that he
was "'definitely' a convicted felon," it is difficult to believe
that, had he been aware of Rehaif's holding, Austin would have
attempted to contest the status element at trial.5
Furthermore, Austin received a plea agreement and
ultimate sentence below the bottom of the advisory sentencing
guidelines range – a range lowered by a downward adjustment for
the acceptance of responsibility, which would have been forfeited
had Austin not pleaded guilty. We have previously observed that
where a defendant's knowledge of the status element would not alter
his risk/benefit analysis in favor of going to trial, it is still
5 Indeed, the PSR indicates that Austin was twice convicted
in Massachusetts of assault and battery with a dangerous weapon.
That is an offense that is punishable by up to ten years of
imprisonment in state prison or two and a half years of
imprisonment in the House of Correction. Mass. Gen. Laws ch. 265,
§ 15A(b). In short, Austin was twice sentenced to crimes punishable
by more than a year in prison. For one of the offenses, Austin
was sentenced to a thirty-month suspended sentence and actually
served that entire sentence in the House of Correction after a
probation violation.
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less probable he would have altered his plea. Id. at 403-06;
Farmer, 2021 WL 567419, at *4. Given Austin's acknowledgement of
his felony conviction and the favorable nature of his plea
agreement, we find he has not demonstrated a reasonable probability
that he would have altered his plea if the district court had
informed him of Rehaif's status element. We therefore reject
Austin's attempt to vacate his judgment of conviction in light of
the Rehaif error at plea colloquy.
Nor do we accept Austin's invitation that we should
reject our recent decision in United States v. Lara and find that
the indictment's omission of the status element violated his
substantial rights. 970 F.3d at 87. Quite apart from the fact
that a panel is generally bound to follow a precedential panel
decision, United States v. Rodriguez-Pacheco, 475 F.3d 434, 441
(1st Cir. 2007), such argument presumptively fails because a guilty
plea waives all non-jurisdictional challenges to an indictment.
Burghardt, 939 F.3d at 402 (citing United States v. Urbina-Robles,
817 F.3d 838, 842 (1st Cir. 2016)). Even if we were to excuse
waiver, Austin's argument would not satisfy plain error review.
As in Lara, the indictment of Austin was "entirely proper at the
time" and "neither the prosecution nor defense counsel . . .
anticipated" the result of Rehaif. 970 F.3d at 88 (citing United
States v. Mojica-Baez, 229 F.3d 292, 310 (1st Cir. 2000)). As a
result, there is no evidence that the indictment's omission of the
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status element "seriously impugn[ed] the fairness, integrity, or
public reputation of the proceeding." Correa-Osorio, 784 F.3d at
18. Accordingly, we do not discern merit in Austin's attempt to
vacate his judgment of conviction in light of the Rehaif error in
the indictment.
We conclude that Austin has failed to establish plain
error in the district court's conduct of the plea colloquy or in
the initial indictment. We therefore reject Austin's attempt to
vacate the judgment of conviction and affirm the district court's
acceptance of his guilty plea.
CONCLUSION
For the foregoing reasons, the district court's denial
of Austin's motion to suppress and request for a Franks hearing,
and acceptance of Austin's guilty plea are affirmed.
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