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with. They are very simple and one should not be intimidated bypaperwork. First let me address a few questions, before you ask them.You may only own a machine gun that was manufactured andregistered with the BATF before May 19, 1986. Weapons manufacturedafter that date are restricted for Military and Law Enforcement useonly. Economics 101, the law of supply and demand should startcoming to mind by now. This is why these weapons are somewhat“pricey”, when compared to current production weapons. “Simply”, thereserves not being available, controlled commodities always make foran excellent investment. The price is only going one place, Up!An individual purchasing a “ National Firearms Act Weapon “, NFAweapon or class 3 weapon is required to pay a one time, 200 FederalExcise Tax fee. This fee has been the same, since 1934. It has neverchanged or has the simple requirement for owning a NFA weapon.These rules and regulation were set forth in 1934, because of thereadily availability of machine guns to people like, Bonnie & Clyde,Dillinger, etc. They permitted the Department of Justice to prosecutecriminals under Federal Law. This had a little more “bite” than locallaws.To obtain an NFA weapon, you must first select one. The reason is,forms are required to transfer the weapon from seller to buyer,requiring specific information. There are several types of forms toaccommodate these transfers. A form “3”, accommodates dealer todealer transfers (Class 3, in or out of state). A form “4”,accommodates dealer to individual transfers, within the state.Unlicensed individuals may not transfer class 3 weapons directly intotheir state. An active Class 3 license is required to execute thetransfer. If you hold an active standard FFL, you may transfer theweapon in directly, however the law enforcement signature,photographs, and fingerprint cards are still required, as well as the 200 FET. We will be happy to help you in the selection of a reputableClass 3 dealer in the state that you live in, however, the final decisionwill be yours.The form “4” is quite simple. It will be filled out in duplicate by yourClass 3 dealer, showing the current owner of the weapon and address,your name and address, description of the weapon and serial number,etc. You will be given the forms, along with a set of fingerprint cards.On the back of the form is a place for your photograph and your locallaw enforcement official’s signature. If you are transferring the NFAPage 11 of 24

weapon to your corporation, this Law Enforcement signature is notrequired. See “Corporate Transfers” or contact us for more details.The required signature may come from a multitude of sources. TheChief of Police, the Sheriff, District Attorney, a Federal judge, StateChief of Police, etc. Typically the person signing this form “4”, willconduct a background check on you, insuring that you are a person ingood standing, within your community. If you have a criminalbackground or questionable past, you will be denied a signature at thispoint. In fact, even if you are a fine upstanding member of thecommunity, you will find this part of the NFA weapon acquisition, themost difficult. Why? Most of the local law enforcement officials today,are no longer police officers, but unfortunately, appointed politicians.You will find that they typically do not sign such documents, with theireyes closed and will generally give a “no” response via a “clerk”, whenyou call up like “Lever Action Bubba” screaming that he has to signthis form, so you can have your machine gun. The “no” answer is toslow down 99% of the individuals that just think they want a class 3weapon. If you are dealing with a clerk and not him directly, this iswhat you deserve. However, there is the remaining 1%, that will dosomething intelligent, like make an appointment to talk about thesignature, maybe have a cup of coffee, etc.After you have obtained an official signature, return the forms alongwith your photographs (taped to the back), your fingerprint cards, andyour check for 200, (payable to The Department of the Treasury) toyour dealer. All of this information, along with the FET fee, will beforwarded to the BATF and they will begin the process of transferringthe ownership of the weapon to your name or corporation. No, youdon’t give up all your rights at this point. It is the question that I getasked the most at this point. Search warrants are still required by law,these days, even for an individual that owns a class 3 weapon. Theseare “bubba” stories.If you are really sincere about owning one of these very rare weapons,please feel free to contact us. We will show you how to legally obtainone. That is what we get paid for. All transactions are confidential, thatis Federal Law!” Page 12 of 24

It might seem that securing the signature of a law enforcement officialcould be a stumbling block to the acquisition of the proper form. Tennesseeremoved this obstacle in 2004:Tenn. Code Ann. § 39-17-1361. Purchase of firearms;requests for documentation from law enforcement officialsThe sheriff or chief of police of the city of residence of a personpurchasing any firearm, defined by the National Firearms Act,26 U.S.C. § 5845 et seq., shall execute within fifteen (15)business days of any request all documents required to besubmitted by the purchaser if the purchaser is not prohibitedfrom possessing firearms pursuant to § 39-17-1316.Given this statute and this state’s toleration – indeed, fascination –with firearms it is not unreasonable to suggest that Mr. Smith could havelawfully acquired a fully automatic weapon and been able to play with his“toy” out there on Buck Hollow Road in Chapmansboro, Tennessee. Thus,Mr. Smith’s crime was not in having a fully automatic weapon but havingone without the proper 200 tax stamp.B.Where one ends a journey is frequently dictated by where one begins.The sentencing guidelines for this offense inexplicably start with a base levelof 18 points which translates to 27 to 33 months. The mid-point of 30months is exactly 25% of the maximum sentence of ten years. If one pleadsPage 13 of 24

guilty and accepts responsibility the level goes to 15 points and a sentence of18 to 24 months which, even at the minimum of 18 months, is still 15% ofthe statutory maximum.One can find pre-guideline cases where defendants were sentenced to18 months. United States v. Williams, 446 F. 2d 486 (5th Cir. 1971)(imposition of a sentence of 18 months for offense of possessing anunregistered firearm was well within statutory maximum of 10 years and didnot constitute cruel and unusual punishment in violation of EighthAmendment). However, sentences prior to the guidelines permitted parole,something which has been abolished. There is less than accurate data toshow that 18 months of actual incarceration was the “baseline” for preguideline convictions.It is more reasonable to suppose that the baseline was fixed to preventany consideration of probation. Even with an extraordinary number ofdownward adjustments one could seldom fall with zones B or C permittingsomething other than full incarceration.Be that as it may, Mr. Smith’s base number is further enhanced by anumber of prior misdemeanor convictions, placing him in Criminal HistoryCategory III. He is “just barely” into this category by virtue of a 90-day DUIsentence for which he is assessed 2 rather than 1 point. Had the sentencePage 14 of 24

been 59 days he would be in Category II. Certainly the Court can “depart”downward by finding that even a criminal history category of II “overrepresents” Mr. Smith’s defendant's criminal history or recidivist tendenciesparticularly since the prior misdemeanors are totally unrelated to hisconviction here. U.S.S.G. § 4.A 1.3 (b)(1). Moreover the Criminal HistoryCategory III is the same as if Mr. Smith has two prior felony convictions. ACriminal History of I which permits some prior record is more inkeeping with the types of prior convictions Mr. Smith has sustained as aresult of his alcohol and drug abuse.Even reducing the “points” for acceptance of responsibility anddeclining to give full impact for the prior misdemeanors still leaves Mr.Smith with an incarceration minimum of 18 months which is unnecessarilypunitive and does not consider all the factors pertinent to sentencing.C.Good works are not a ticket to heaven or a reduction of sentenceunder the guidelines per se. However, such matters are now a validconsideration under 18 U.S.C. § 3553(a). There are no limitations on theinformation the Court may consider at sentencing “concerning thebackground, character, and conduct of a person convicted of an offense.” 18U.S.C. § 3661. As part of its consideration of these factors, the court mustPage 15 of 24

recognize “that imprisonment is not an appropriate means of promotingcorrection and rehabilitation.” 18 U.S.C. § 3582(a).18 U.S.C. § 3553(a) does not direct the Court to give greater weight tosome factors over others, and the Court may now consider factors thatpreviously were considered “prohibited factors” or “not ordinarily relevant”under the sentencing guidelines, such as family circumstances, age of condition,employment record, and lack of guidance as a youth. See U.S.S.G. § 5H1.1.12 (listing the relevance of certain offender characteristics). See UnitedStates v. Briceno, No 04-4493, (6th Cir. June 22, 2005):In a similar case, this Court recently examined a district court'sdownward departure from the applicable guideline range basedon factors previously discouraged under the mandatoryguidelines. See United States v. Jackson, 408 F.3d 301, 304(6th Cir.2005). We observed in Jackson that although thedownward departure based on previously discouraged andprohibited factors “would almost certainly have beenproblematic under the Guidelines” prior to the Supreme Court'sdecision in Booker, the court's departure may be reasonableunder the now-discretionary guidelines. Id. at 304.Recent Sixth Circuit cases clarify that the advisory guidelinessentencing range is not, the per se reasonable sentence. United States v.Webb, 403 F.2d 373, 385 (6th Cir. 2005) (noting that such a rule would be“not only inconsistent with the meaning of reasonableness, but is alsoinconsistent with the Supreme Court’s decision in Booker, as such a standardPage 16 of 24

‘would effectively re-institute mandatory adherence to the guidelines.’”United States v. Williams 436 F.3d 706 (6th Cir. 2006) held that on appeal“sentences properly calculated under the guidelines will be credited with arebuttable presumption of reasonableness”). The holding in Williams wasclarified in United States v. Marco Eugene Foreman 436 F.3d 638 (6th Cir.2006), in which the court explained:“although this statement seems to imply some sort of elevatedstature to the guidelines, it is in fact rather unimportant.Williams does not mean that a sentence outside of the guidelinerange—either higher or lower—is presumptively unreasonable,it is not. Williams does not mean that a guideline sentence willbe found reasonable in the absence of evidence in the recordthat a district court consider all of the relevant 3553(a)factors . . . moreover, Williams does not mean that a sentencewithin the guidelines is reasonable if there is no evidence thatthe district court followed its statutory mandate to “impose asentence sufficient, but not greater than necessary” tocomply with the purposes of sentencing in Section 3553(a)(2).Id. at 644. (Emphasis added).At the sentencing hearing this Court will hear testimony that Mr.Smith is highly committed to his family and friends. He has undertakenwork in the storm ravaged area of Mississippi to help rebuild homes of hisrelatives destroyed by the recent hurricanes. Mr. Smith rebuilt a factorydestroyed by probable arson to give employment to residents of hiscommunity here in Tennessee.Page 17 of 24

Unfortunately, Mr. Smith suffers from various mental illnesses thathave plagued him all his life. His physician has provided a letter to thisCourt and the pre-sentence report confirms the Bipolar disorder diagnosis.Mr. Smith also suffers from alcohol abuse for which he is now,finally, receiving treatment on an out-patient basis at the FoundationsAssociates in Nashville. The pre-sentence officer has wisely recommendedfurther treatment on supervised release for these multiple maladies, 1 but thisshould not be inordinately delayed by prolonged incarceration. This Court iscertainly aware “that in determining the length of the term. imprisonmentis not an appropriate means of promoting correction and rehabilitation.” 18U.S.C. § 3582. Accordingly, rehabilitative programs can be a justificationfor a somewhat reduced period of incarceration.D.18 U.S.C. § 3553(a)(6) asks the Court to avoid unwarranted sentencedisparities. There are a host of cases where defendants convicted of weaponoffenses have received sentences far in excess of the year and a day1When a person is affected by both an emotional or psychiatric illness and chemicaldependency, they are suffering from co-occurring conditions. Psychiatric illness andchemical dependency affect an individual physically, psychologically, socially, andspiritually. Although the two conditions are separate and independent, they interact inways that make diagnosis, treatment, and recovery more complex. FoundationsAssociates provides treatment and education of individuals and families affected by cooccurring conditions.Page 18 of 24

recommended here. Invariably these other cases involve the tinge of drugs organg-related activity. This suggests that perhaps the high base number of theweapon sentencing guideline is to “get at” drug dealers even though the drugconnection may not be readily provable.There is unquestionably a high correlation between automaticweapons and drugs. See, United States v. Jones, 102 F.3d 804, 806 (6thCir.1996) (cocaine dealers attempt to sell federal agents a MAC-10, a MAC11, and an AK-47, two of which have obliterated serial numbers); UnitedStates v. Cannon, 88 F.3d 1495, 1505 (8th Cir.1996) (“The record in thiscase contains evidence that a machine gun is a drug dealer's most prizedpossession.”); United States v. Thomas, 12 F.3d 1350, 1361-62 (5thCir.1994) (AR-15 rifle modified to fire as a machine gun used by defendantfor protection because of “his line of business” in conspiracy to distributecocaine, amphetamine, methamphetamine and marijuana), United States v.Sims, 975 F.2d 1225, 1230 (6th Cir.1992) (ATF agents discover two AR-15rifles, converted to fire fully automatically, and 257 rounds of ammunition inthe back seat of a car in connection with the arrest of defendants attemptingto buy 337,500 worth of cocaine).There is no suggestion here that Mr. Smith did anything other than“play” with his modified rifle. As the Court will hear at the sentencingPage 19 of 24

hearing, Mr. Smith succeeded only in shooting his lawnmower. The tinge ofdrugs and gang activity is not in record or even in the remotest imaginationof the BATF agent who investigated the case.District courts impose sentences considerably under the guidelines infirearm prosecutions where there is some mitigation to the case. UnitedStates v. Doucet, 994 F.2d 169, 170 (5th Cir. 1993) (defendant convicted ofpossession of an unregistered firearm – an AR15 – modified to fire as amachine gun, district court properly sentenced him to twelve months ofunsupervised probation and a 5,000.00 fine); United States v. Hopper, 941F.2d 419 (6th Cir. 1991) (ten-month sentence imposed on defendantconvicted of selling AR7 rifle which had been converted to fully automaticdid not violate Eighth Amendment's guarantee against cruel and unusualpunishment; case arose in this District and was imposed by Judge L. ClureMorton). See also, United States v. Williams, 432 F.3d 621 (6th Cir. 2005)(imposition of departure sentence of 24 months' imprisonment for convictionof being felon in possession of firearm was reasonable, even thoughrecommended sentencing range under Sentencing Guidelines was 46 to 57months,); United States v. Briceno, No 04-4493, (6th Cir. June 22, 2005) (ina prosecution for possession of a weapon by a convicted felon, the districtcourt granted a six-level departure and sentenced the defendant to fivePage 20 of 24

months of imprisonment, five months of home confinement, and two yearsof supervised release; affirmed as reasonable). The suggested sentence of ayear and a day here is not inconsistent with these cases.E.Earlier, it was noted that even with all the favorable adjustments theguidelines dictate a sentence of 18 months of incarceration which is 15% ofthe maximum sentence. The defense suggests that the other favorablefactors eschewed by the wooden guidelines – but allowed by 18 U.S.C. §3553(a) – will permit a sentence of incarceration which is still 10% of themaximum statutory range Congress decreed for the crime of possessing afully automatic weapon without the proper 200 tax stamp. Such a sentenceis reasonable. 22See the extensive rationale justifying the 43-month (!) upward Booker-variance inUnited States v. Barton, 6th Cir.(August 3, 2006). See also, United States v. Eric Jones,2nd Cir. (August 2, 2006):In the pending case, the sentence of 15 months is 15 months less than thebottom of the calculated Guidelines range. In [United States v. Fairclough, 439F.3d 76 (2d Cir. 2006)] the non-Guidelines sentence was 21 months above the topof the calculated Guidelines range. If we are to be deferential when theGovernment persuades a district judge to render a non-Guidelines sentencesomewhat above the Guidelines range, we must be similarly deferential when adefendant persuades a district judge to render a non-Guidelines sentence somewhatbelow the Guidelines range. Obviously, the discretion that Booker accordssentencing judges to impose non-Guidelines sentences cannot be an escalator thatonly goes up.Page 21 of 24

The important message sent by the suggested sentence here can beaccomplished not as much by the length of incarceration as by the fact ofincarceration. 18 U.S.C. §3553(a)(2) requires that a sentence reflect theseriousness of the offense, promote respect for the law, and provide justpunishment for the offense. It must also serve to afford adequate deterrenceto criminal conduct. These important sentencing goals can be attained by asentence of a year and a day of incarceration (followed by an extendedperiod of supervised release).As the Court has gleaned from the many letters of support Mr. Smithis highly regarded in his community. He is also well known and thus hisincarceration will be well known by everyone. A year and a day in a federalprison will send the necessary message that possession of a fully automaticweapon will result in inevitable incarceration: a machine gun is not a toy,even on rural Buck Hollow Road.F.18 U.S.C. § 3621(e) provides a basis for what, in effect, is a reductionin a defendant’s sentence for successful completion of the Bureau ofPrisons’ Residential Drug Abuse Program (RDAP). The Court should beaware that in light of BOP Directive 5331.01 concerning “early release,” theBOP will not allow Mr. Smith to participate in the RDAP program becausePage 22 of 24

he has been convicted of a “violent offense.” BOP Directive 5162.04(6)(3)provides that convictions for any of the subsections of 26 U.S.C. 5861 are“crimes of violence,” which automatically exclude participation in theBureau of Prisons’ Residential Drug Abuse Program. Thus, this Court’ssentencing determination should not assume eligibility for RDAP and anyjudicial recommendation for such will be ignored by the BOP.So that he can take advantage of more of his current outpatienttreatment program, this Court should permit Mr. Smith to self-report for theincarceration component of his sentence. Finally, the Court may make arecommendation as to place of incarceration with the understanding that it isnot binding on the BOP. Counsel asks that the Court recommend FCIMemphis (a/k/a Millington).Respectfully submitted,s/ David L. RaybinDavid L. Raybin, #3385Financial Center, 22nd Floor424 Church StreetNashville, Tennessee 37219(615) 256-6666Page 23 of 24

CERTIFICATE OF SERVICEI hereby certify that a copy of the foregoing document was servedupon Assistant United States Attorney Robert J. Washko, 110 Ninth Ave.South, Suite A-961, US Courthouse, Nashville, Tennessee, 37203, viaelectronically through the Electronic Filing System, this 4th day of August,2006.s/ David L. RaybinDavid L. RaybinAPPENDIX FOLLOWSPage 24 of 24

DEFENSE SENTENCING MEMORANDUM Mr. Smith pled guilty to possession of an unregistered machine gun in violation of 26 U.S.C. Section 5861(d) (this offense is a Class C felony because of a separate statute which provides that an offense with a ten-year maximum is a Cla