United States v. Nathan Kempter ( 2022 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 21-1331
___________________________
United States of America
Plaintiff - Appellee
v.
Nathan Lee Kempter, also known as Nathan L. Kempter
Defendant - Appellant
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Appeal from United States District Court
for the District of Nebraska - Lincoln
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Submitted: November 18, 2021
Filed: March 29, 2022
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Before BENTON, KELLY, and ERICKSON, Circuit Judges.
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KELLY, Circuit Judge.
Nathan Kempter was convicted by a jury of attempted enticement of a minor
and interstate travel with intent to engage in illicit sexual conduct. On appeal,
Kempter challenges the sufficiency of the evidence, as well as several aspects of his
sentence. Having jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.
I.
In July 2019, at age 32, Kempter began corresponding with then-14-year-old
C.I. through the social media site Reddit, specifically on a Subreddit for runaway
teens. After their initial contact, on or about July 23, 2019, C.I. requested they use
the social media website Tumblr to communicate instead. At first, Kempter and C.I.
discussed how Kempter could help C.I. run away from home, but Kempter then
introduced a variety of sexual topics to their conversations. Kempter knew C.I. was
14 years old.
On July 30, 2019, Kempter and C.I. began forming a plan in which Kempter
would pick up C.I. in Lincoln, Nebraska, to help her run away. According to C.I.,
on that date Kempter’s messages also became “more sexual.” In messages sent July
30 and 31, Kempter asked C.I. about her interest in sex, bondage, and pornography,
and expressed his desire to engage in sexual activity with her. He also asked C.I. to
send him selfies. On August 1, 2019, Kempter suggested they speak over the phone
to discuss logistics of him helping C.I. run away so that their conversation would not
be in writing, and he told C.I. to delete her call history after they spoke. Ultimately,
they arranged for Kempter to meet C.I. outside her parents’ house in Lincoln and to
take C.I. to his home in Highlands Ranch, Colorado.
On August 2, 2019, Kempter drove to C.I.’s house, and she got into his car.
Kempter lowered the passenger seat and covered C.I. with a coat so she was less
visible. During the drive, Kempter touched C.I.’s breasts and legs, and talked about
his sexual interest in her. Kempter stopped at a Walmart in Lexington, Nebraska,
about two and half hours from Lincoln, where he purchased different clothes for C.I.
to wear and a blanket to keep her covered. After the Walmart stop, Kempter’s
touching became more forceful. At one point, he pulled the car over, got on top of
C.I., and put his hands on her neck. During the trip, Kempter told C.I. what to say
if anyone found them together and, at some point, he gave C.I. his phone to use to
delete her Reddit account. Kempter asked her to delete Tumblr too, but she could
not do so without her phone, which she left at home in Lincoln.
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Meanwhile, C.I.’s parents discovered she had left home without her cell phone
and contacted the Lincoln Police Department (LPD). They provided C.I.’s cell
phone and a phone bill, which showed a call to a number from Denver, Colorado.
With this information and some additional investigation, the police were able to find
Kempter’s address, estimate the route Kempter would be driving, and then use cell
phone tower pings to track his car. LPD contacted the Douglas County Sheriff’s
Office in Colorado, and when Kempter and C.I. arrived at Kempter’s house in
Highlands Ranch, officers were waiting for them. Kempter was taken into custody.
Officers asked how old the girl in the car was, and Kempter told them she was 14.
C.I. was placed in a police car, where video footage recorded her expressing
frustration that they had been caught. The following day, a forensic nurse examined
C.I. and documented swelling on the front of C.I.’s neck and abrasions and bruising
around her breasts.
On August 21, 2019, Kempter was charged in a two-count indictment with
attempted enticement of a minor, in violation of 18 U.S.C. § 2422(b), and interstate
travel with intent to engage in illicit sexual conduct, in violation of 18 U.S.C.
§ 2423(b). Kempter pleaded not guilty, and his case proceeded to trial. The defense
made a motion for acquittal under Federal Rule of Criminal Procedure 29 at the close
of the government’s case and after the defense rested. The district court1 denied the
motions, and, on September 2, 2020, the jury found Kempter guilty on both charges.
At sentencing, Kempter objected to sentencing enhancements proposed in the
Presentence Investigation Report (PSR) for undue influence of a minor and
obstruction of justice. After hearing testimony and argument from both parties, the
district court overruled the objections and calculated a total offense level of 36 and
a criminal history category of I, resulting in a United States Sentencing Guidelines
range of 188 to 235 months of imprisonment and a supervised release range of five
years to life. The district court imposed a sentence of concurrent terms of 228
1
The Honorable John M. Gerrard, United States District Judge for the District
of Nebraska.
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months of imprisonment and 12 years of supervised release on each count, and
ordered Kempter to pay $13,895.36 in restitution to C.I. and her family. Kempter
timely appealed.
II.
Kempter challenges the sufficiency of the evidence on both counts of
conviction. The court reviews “the sufficiency of the evidence de novo, viewing
evidence in the light most favorable to the jury’s verdict, resolving conflicts in the
government’s favor, and accepting all reasonable inferences that support the
verdict.” United States v. King, 898 F.3d 797, 808 (8th Cir. 2018) (quoting United
States v. Tillman, 765 F.3d 831, 833 (8th Cir. 2014)). A verdict will be overturned
“only if no reasonable jury could have found the defendant guilty beyond a
reasonable doubt.” Id.To convict a defendant of inducing a child to engage in criminal sexual
activity in violation of 18 U.S.C. § 2422(b), as charged in Count 1, the government
must prove that the defendant:
(1) used a facility of interstate commerce, such as the internet or
telephone system; (2) knowingly used the facility of interstate
commerce with intent to persuade or entice a person to engage in illegal
sexual activity; and (3) believed that the person he sought to persuade
or entice was under the age of eighteen.
United States v. Shinn, 681 F.3d 924, 931 (8th Cir. 2012) (quoting United States v.
Young, 613 F.3d 735, 742 (8th Cir. 2010)). A conviction based on attempt requires
proof that the defendant intended to commit the predicate offense and conduct that
constitutes a substantial step towards the crime’s commission. Id. As to Count 2,
“[t]o convict under 18 U.S.C. § 2423(b), the government must prove that the
defendant traveled in interstate commerce with the intent to engage in illicit sexual
conduct.” United States v. Willins, 992 F.3d 723, 726 (8th Cir. 2021).
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It is undisputed that Kempter and C.I. communicated over the internet and
that Kempter believed C.I. was under the age of 18. Kempter argues, however, that
the evidence was insufficient to show that he used the internet to entice C.I. to engage
in illegal sexual activity. He insists their chats were about hypothetical sexual
conduct only and show his sole purpose in communicating with C.I. and traveling
from Colorado to Nebraska was to help her run away from home.
There was abundant evidence from which the jury could conclude that
Kempter intended to “persuade or entice” C.I. to engage in “illegal sexual activity.”
Kempter began by telling C.I. he could help her run away but soon turned the
conversation to sexual topics, both expressing his own sexual desires and asking C.I.
about her sexual interests. The two also discussed C.I.’s reasons for wanting to leave
home, and Kempter regularly assured her that he wanted to help. But viewing the
evidence in the light most favorable to the verdict, the entire string of chats reflected
an ongoing effort to persuade C.I. to trust him and, in turn, engage in illegal sexual
activity. Likewise, the jury heard sufficient evidence from which it could infer that
Kempter traveled between states “with the intent to engage in illicit sexual conduct.”
Contrary to Kempter’s assertions, the record includes numerous statements of his
intent to engage in sexual conduct with C.I. after he picked her up in Lincoln, as well
as evidence that Kempter acted on those intentions by touching C.I. during the drive
to Highlands Ranch.
III.
Kempter also challenges his sentence. We review the district court’s
application of the Guidelines de novo. United States v. Waller, 689 F.3d 947, 957
(8th Cir. 2012) (per curiam). At sentencing, the district court may rely on facts
proved by a preponderance of the evidence, and we review such factual findings for
clear error. United States v. Anderson, 926 F.3d 954, 957 (8th Cir. 2019). We
review a challenge to the substantive reasonableness of a sentence “under a
‘deferential abuse-of-discretion standard.’” United States v. Manning, 738 F.3d 937,
947 (8th Cir. 2014) (quoting United States v. Beasley, 688 F.3d 523, 535 (8th Cir.
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2012)). A district court must consider all sentencing factors in 18 U.S.C. § 3553(a),
but retains “wide latitude” in how it weighs the factors, United States v. Johnson,
916 F.3d 701, 703 (8th Cir. 2019), and need not “categorically rehearse each of the
section 3553(a) factors on the record . . . as long as it is clear that they were
considered,” United States v. Dieken, 432 F.3d 906, 909 (8th Cir. 2006).
A.
Kempter first contests the application of USSG § 2G1.3(b)(2)(B), a two-level
enhancement for “unduly influenc[ing] a minor to engage in prohibited sexual
conduct.” The application notes for this enhancement instruct the court to “closely
consider the facts of the case to determine whether a participant’s influence over the
minor compromised the voluntariness of the minor’s behavior.” But when a
participant is at least ten years older than the minor, such as here, there is a rebuttable
presumption that the enhancement applies, as “some degree of undue influence can
be presumed because of the substantial difference in age between the participant and
the minor.” USSG § 2G1.3(b)(2)(B), cmt. (n.3(B)). The district court concluded
that Kempter had not rebutted the presumption and applied the enhancement.
On appeal, Kempter argues that the court focused solely on the age difference
and ignored the weight of other evidence, including that C.I. wanted to run away and
was initially upset that law enforcement had found them. According to Kempter,
the district court did not “closely consider the facts of the case” as required. But the
fact that a “victim traveled freely with [the] defendant” does not rebut the
presumption that the undue influence enhancement applies, United States v. Hagen,
641 F.3d 268, 271 (8th Cir. 2011), and the enhancement may be upheld based on a
“manipulative adult’s building a relationship with a minor for the purpose of
eventual sexual activity,” id. (quoting United States v. Lay, 583 F.3d 436, 445 (6th
Cir. 2009)); see also United States v. Hornbuckle, 784 F.3d 549, 556 (9th Cir. 2015)
(“The undue-influence enhancement is not limited to force, fraud, or coercion. It
also reaches manipulating and preying upon a vulnerable victim.” (cleaned up)
(quoting United States v. Reid, 751 F.3d 763, 768 (6th Cir. 2014))). The district
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court did not clearly err in concluding this was a case of grooming: Kempter knew
C.I. wanted to run away from home, and he manipulated that weakness by
corresponding with C.I. for the purpose of eventual sexual activity. The district court
did not err in applying the enhancement.
B.
Kempter also appeals the two-level sentencing enhancement for obstruction
of justice. See USSG § 3C1.1 (providing for an enhancement when a defendant
“willfully obstructed or impeded, or attempted to obstruct or impede, the
administration of justice with respect to the investigation, prosecution, or sentencing
of the instant offense of conviction,” and the obstructive conduct was related to
either the offense of conviction or a closely related offense). The district court relied
on the evidence that Kempter asked C.I. to delete her social media and call history
to avoid detection both before and at the time he picked her up in Lincoln, as well
as on chats between Kempter and C.I. about taking steps to prevent her parents from
finding her. The district court found that Kempter “tried in every way to impede the
investigation.”
Kempter now argues that the enhancement was improperly applied because
neither he nor C.I. had any reason to believe that law enforcement would become
involved since C.I. was running away from her parents, not the law. We find this
argument unavailing. The record shows that Kempter made repeated efforts to avoid
detection, including researching Nebraska kidnapping and abduction laws. Such
conduct supports an inference that Kempter believed he was or would be under
investigation, and thus willfully attempted to obstruct or impede the administration
of justice. See United States v. Dillard, 370 F.3d 800, 805 (8th Cir. 2004)
(suggesting that evasive or obstructive conduct itself may show that a defendant
believes he is likely under investigation).
Moreover, to the extent Kempter argues that the enhancement was improper
because any obstructive conduct occurred before the investigation began, we
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disagree. We have held that, for purposes of USSG § 3C1.1, “the obstructive
conduct must occur after an official investigation begins.” United States v. Water,
413 F.3d 812, 819 (8th Cir. 2005) (citing United States v. Stolba, 357 F.3d 850, 852
(8th Cir. 2004)). Since Stolba, our leading case on this issue, the Guidelines
application notes for USSG § 3C1.1 have been amended to clarify that “[o]bstructive
conduct that occurred prior to the start of the investigation of the instant offense of
conviction may be covered by this guideline if the conduct was purposefully
calculated, and likely, to thwart the investigation or prosecution of the offense of
conviction.” USSG § 3C1.1, cmt. (n.1).
We have not revisited Stolba in light of the updated Guidelines commentary,
and we need not do so here because the district court did not clearly err in applying
the enhancement as the record shows that Kempter willfully attempted to impede
law enforcement throughout the entirety of the offense conduct. Water, 413 F.3d at
819 (“We review the imposition of [the obstruction of justice] enhancement for clear
error.”). Though the timeline of the obstructive conduct after Kempter picked up
C.I. in Lincoln—deleting social media accounts, hiding C.I. from view in the car—
compared to the starting point of the official investigation is not entirely clear, the
record supports an inference that at least some of the steps Kempter took occurred
after LPD began tracking the car. The record shows that C.I.’s family contacted
LPD around 5 p.m. on August 2, 2019, and that Kempter stopped at Walmart in
Lexington—a town about two and a half hours from Lincoln—around 7:30 p.m.
Kempter’s efforts to hide C.I. from view, to make up a story for C.I. to use if anyone
questioned them, and to delete C.I.’s social media accounts during the drive to
Highlands Ranch all were willful attempts to impede any investigation into his
conduct while traveling interstate.
C.
Kempter also claims the district court imposed a substantively unreasonable
sentence. He argues the district court failed to consider his military service, his
employment history, that his computer contained no child pornography, and his lack
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of criminal history. We find no abuse of discretion. A review of the record shows
that the district court properly considered the § 3553(a) factors. Contrary to
Kempter’s assertion, the district court explicitly addressed his military service but
simply did not find it to be a mitigating factor. Kempter’s position is essentially that
the district court did not give mitigating § 3553(a) factors sufficient weight, but this
type of disagreement is not a ground for reversal. See, e.g., United States v.
Campbell, 986 F.3d 782, 808 (8th Cir. 2021) (“Simply because the district court
weighed relevant factors more heavily than the defendant would prefer does not
mean the district court abused its discretion.” (cleaned up) (quotation omitted)).
III.
As a special condition of supervised release, the district court ordered that
Kempter submit to polygraph examinations. Kempter challenges this condition as
not rationally related to the crime of conviction and unnecessary to achieve the
purposes of sentencing under § 3553(a). We review special conditions of supervised
release for abuse of discretion. United States v. Smith, 960 F.3d 1107, 1109 (8th
Cir. 2020). A district court is “encouraged to provide an explanation of how the
conditions satisfy the requirements of [18 U.S.C.] § 3583(d), but where the basis for
the special conditions can be discerned from the record, reversal is not required.”
United States v. Simpson, 932 F.3d 1154, 1156 (8th Cir. 2019).
A special condition of supervised release must be “(1) reasonably related to
the factors in 18 U.S.C. § 3553(a); (2) no greater deprivation of liberty than
reasonably necessary for the purposes in 18 U.S.C. § 3553(a); and (3) consistent
with any pertinent policy statements by the Sentencing Commission.” Smith, 960
F.3d at 1109 (citing 18 U.S.C § 3583(d)). For defendants whose offense includes
deceptive conduct or who have otherwise shown indicia of lacking candor with the
court or the probation office, polygraph testing is a permissible condition of
supervised release. See id. at 1109–10 (discussing cases in which polygraph
conditions have been upheld). We have also noted that polygraph testing may be
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included when it is used for treatment purposes, not as a means to gather evidence.
Id. at 1110.
There is no allegation that Kempter was dishonest with the court or the
probation office, but he did make numerous attempts to evade detection and avoid
apprehension, and he asked a minor to delete evidence of his criminal activity. Here,
the district court—which presided over the trial and the sentencing—had before it
all of the offense conduct when it imposed the special condition. While the
justification for the condition was not detailed, a reason for it can be discerned from
the record, and we find no abuse of discretion. Simpson, 932 F.3d at 1156.
IV.
Finally, Kempter appeals the district court’s decision to award restitution. We
review de novo legal interpretations made by the district court in determining
whether to award restitution. United States v. Gammell, 932 F.3d 1175, 1180 (8th
Cir. 2019), cert. denied, 140 S. Ct. 2809 (2020). We review restitution awards for
abuse of discretion and any factual findings about the amount to be paid for clear
error. United States v. Hoskins, 876 F.3d 942, 945 (8th Cir. 2017).
A.
The district court awarded restitution pursuant to 18 U.S.C. § 2429, a
provision of the Abolish Human Trafficking Act of 2017 (AHTA). 2 Kempter does
not dispute that this provision applies to his convictions but argues that the award is
not authorized by the statutory definition of allowable restitution. Section
2
The AHTA, among other things, established mandatory restitution for
victims of commercial sexual exploitation and human trafficking, including
enticement of a minor to engage in illegal sexual conduct under 18 U.S.C. § 2422(b).
See Abolish Human Trafficking Act of 2017 § 3(a), Pub. L. No. 115-392, 132 Stat.
5250 (Dec. 21, 2018).
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2429(b)(1) of the AHTA instructs that the court “shall direct the defendant to pay
the victim . . . the full amount of the victim’s losses”—but an issue arises when
looking to the definition of that term. Section 2429(b)(3) states, “[a]s used in this
subsection, the term ‘full amount of the victim’s losses’ has the same meaning as
provided in section 2259(b)(3).” 18 U.S.C. § 2429(b)(3). But, as Kempter points
out, no definition is found at § 2259(b)(3). Rather, that provision states:
“Enforcement. – An order of restitution under this section shall be issued and
enforced in accordance with section 3664 in the same manner as an order under
section 3663A.” Definitions are found, instead, one subsection later, in § 2259(c).
There, “full amount of the victim’s losses” is defined, in relevant part, as: “any costs
incurred, or that are reasonably projected to be incurred in the future, by the victim,
as a proximate result of the offenses involving the victim.” 18 U.S.C. § 2259(c)(2).
It appears therefore, that the cross-reference in § 2429(b)(3) should be to
§ 2259(c)(2), rather than to § 2259(b)(3).
The legislative history of the relevant provisions makes sense of how this gap
in the AHTA restitution statute likely came to be. The AHTA, including
§ 2429(b)(3), became effective December 21, 2018. Section 2259 was amended on
December 7, 2018, through passage of the Amy, Vicky, and Andy Child
Pornography Victim Assistance Act of 2018 (AVAA).3 Before the AVAA,
§ 2259(b) was the definitions subsection, rather than § 2259(c) as it exists now, with
§ 2259(b)(3) defining “full amount of victim’s losses.” Congress apparently failed
to update the cross-reference for the definition in the AHTA to match the amended
version of § 2259.
3
The Amy, Vicky, and Andy Child Pornography Victim Assistance Act of
2018 was passed in response to Paroline v. United States, 572 U.S. 434 (2014), see
United States v. Clemens, 990 F.3d 1127, 1129 (8th Cir. 2021), and among other
provisions, established minimum levels of restitution for each victim of a child
pornography offense, see 18 U.S.C. § 2259(b)(2)(B); United States v. Green, 954
F.3d 1119, 1125 (8th Cir. 2020).
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We conclude that this is a scrivener’s error and use the definition found at
§ 2259(c)(2) for purposes of applying § 2429(b)(1). A scrivener’s error that
produces an absurd result constitutes a narrow exception to the principle of
adherence to the plain meaning of a statute. Owner-Operator Indep. Drivers Ass’n
v. United Van Lines, LLC, 556 F.3d 690, 694 (8th Cir. 2009). A scrivener’s error
exists only if, after reviewing the structure, language, and subject matter of the
statute in detail, the court finds no plausible purpose of the provision at issue when
read holistically with the rest of the statute. See id. (citing U.S. Nat’l Bank of Or.
v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 462 (1993); Holloway v. United
States, 526 U.S. 1, 19 n.2 (1999) (Scalia, J., dissenting)). In Owner-Operator
Independent Drivers Association, this court noted that the Supreme Court has treated
Congress’s “failure to delete an inappropriate cross-reference” as “simply a drafting
mistake,” 556 F.3d at 694 (quoting Chickasaw Nation v. United States, 534 U.S. 84,
90–91 (2001)), justifying departure from “rigid adherence to the plain meaning of a
statute,” id. Reading §§ 2429 and 2259 holistically, there is no plausible explanation
as to why § 2429(b)(3) would cite the “enforcement” provision rather than the
definition of “full amount of the victim’s losses” other than that Congress failed to
update the cross reference.
Taking the two provisions together and reading in the correct cross-reference
is the only reasonable construction. See United States v. Mahoney, No. CR18-0090,
2019 WL 1040402, at *2 (W.D. Wash. Mar. 5, 2019) (“As used in this subsection,
the term ‘full amount of the victim’s losses’ has the same meaning as provided in
section 2259[(c)(2)].” (alteration in original) (quoting 18 U.S.C. § 2429(b)(3))).
Accordingly, the district court was authorized to award restitution for the full amount
of C.I.’s losses as defined in § 2259(c)(2).
B.
The amount of restitution awarded is the last issue we address. The district
court awarded restitution of $13,895.36, attributed to out-of-pocket costs incurred
by C.I.’s family for therapy and educational accommodations for C.I. Kempter
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argues the district court abused its discretion by awarding restitution for damages
not caused by Kempter but inflicted by other perpetrators both before and after his
offense conduct.
The applicable restitution provision includes a non-exhaustive list of the types
of damages that may be awarded to reimburse a victim’s losses, including medical
services, therapy, and “any other relevant losses incurred by the victim.” 18 U.S.C.
§ 2259(c)(2). “[R]estitution is proper to the extent that the offense ‘proximately
caused a victim’s losses.’” Hoskins, 876 F.3d at 946 (quoting Paroline, 572 U.S. at
448). Restitution may be awarded in an amount “that comports with the defendant’s
relative role in the causal process that underlies the victim’s general losses,” even if
a showing of but-for causation cannot be made. Paroline, 572 U.S. at 458. When
multiple causes contribute to a victim’s losses, the district court must use its
discretion and sound judgment to determine the amount of restitution. Hoskins, 876
F.3d at 947.
The expenses the district court identified—therapy and educational
resources—fall within the definition of “full amount of the victim’s losses” through
the enumerated and catchall terms. As to whether the damages were proximately
caused by Kempter’s offenses, the district court did not clearly err in concluding that
they were. At sentencing, C.I.’s father testified that all of the expenses at issue were
incurred after August 2, 2019, and the family would not have pursued the services
for C.I. but for Kempter’s conduct. Acknowledging that restitution may be awarded
for only those losses proximately caused by the offenses of conviction, the district
court said it had “little difficulty connecting [C.I.’s] damages to the conduct of
[Kempter’s] offenses.” The district court was not obligated to make a “precise
mathematical inquiry” into the amount of damages caused by Kempter’s conduct as
compared to the conduct of others, see Hoskins, 876 F.3d at 947, and we see no
abuse of discretion in the restitution award as ordered.
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VI.
For the foregoing reasons, we affirm the district court’s decisions in all
respects.
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