Case: 09-5025 Document: 00615454705 Filed: 03/26/2009 Page: 1 NO. 09-5025 IN THE UNITED STATES COURT OF APPE FOR THE SIXTH CIRCUIT UNITED STATES OF AMERICA Plaintiff-Appellee ¥ RICHARD HAMBLEN Defendant-Appellant On Appeal from the United States District Court Middle District of Tennessee, Nashville Division Civil No. 3:08-1034 BRIEF OF THE RESPONDENT-APPELLEE EDWARD M. YARBROUGH United States Attorney for the Middle District of Tennessee MATTHEW J. EVERITT Assistant United States Attorney 110 9th Avenue South, Suite A-961 Nashville, Tennessee 37203 Attorneys for Plaintiff-Appellee (615) 736-5151Case: 09-5025 Document: 00615484705 Filed: 03/26/2009 Page: 2 TABLE OF CONTENTS TABLE OF AUTHORITIES........... ii STATEMENT REGARDING ORAL ARGUMENT...........0.000000000e iv STATEMENT OF SUBJECT MATTER JURISDICTION. . . el STATEMENT OF THE ISSUE............... : STATEMENT OF THE CASE. .... 0.0.0.2 22200000 eeeeeeee esse eee +2 STATEMENT OF THE FACTS. .......0..- 222000 c cess eeeeeee seer eeeee Ge SUMMARY OF THE ARGUMENT. 7 STANDARD OF REVIEW... 0.020.000 0 0c 0 cece ec eee teense eee eens 10 ARGUMEN es ce ee eee MW (CONCLUSIONS: erg terete ee ee 20 pieeie ti ticeneeee See PNP caccceeeaseescacssatteaseasasscsssasssesseneassaas 20 ADDENDUM. «2.2.20. 06 0.0.0 e cee ee essen eee eens seen eee elCase: 09-5025 Document: 00615454705 Filed: 03/26/2009 Page: 3 TABLE OF AUTHORITIES Case Page District of Columbia v. Heller, 128 8. Ct. 2783 (2008). ..... 6. 40.00005 passim Gall v. United States, 2) F.3d 107 (6th Cir, 1994)... 0.0.0... eee cee eee eee 10 Hamblen v. United States, 2008 WL 5136586 (MLD. Tenn. Dec. 5, 2008). 0... 5s0eeeee eee e eet ee teen eee 2 Hilliard v. United States, 157 F.3d 444 (6th Cir. 1998)......0.0.0.0202 000 10 Preveler v. United States, 269 F.3d 693 (6th Cir. 2001). ...........22200005 10 United States v. Bournes, 339 F.3d 396 (6th Cir. 2003)... . United States y. Fincher, 538 F.3d 868 (8th Cir. 2008). United States v. Frazier, 2008 WL 4949153 (Gilt Gir) 008 (unpublished) eer te teste ee tenets 17 United States v, Gilbert, 286 F. App’x. 383, Se Oe ee eeeceeeceeecm er 12,16 United States v. Hamblen, 239 F. App’x. 130, 2007 WL 1804393 (6th Cir. June 24, 2007).........0005 we 24 United States v. Miller, 307 U.S. 174 (1939)...2222220ceeeeeeeeeeeeee passim United States v, Warin, 530 F.2d 103 (6th Cir. 1976). 2.2.0... eee eee 18 United States v. Zipkin, 729 F.2d 384 (6th Cir. 1984). eeeCase: 09-5025 Document: 00615454705 Filed: 03/26/2009 Page: 4 FEDERAL STATUTES IB US.C.§ 922. eee eee eceecce eee eeeeeeeeeeteeeeeeeee passim 26 U.S.C. § 5841.......... neon eee ete e eet eetnetaeeneneeaetes 12 26 ULS.C. § 5845(a).. eee dene ceeeeenenaes 12 26 U.S.C. § 58610)... ee cece eee eee cette eee eee ee ee ee ee ee es passim: QWUSC.§ 1291. e eee eee eeneeene ee ee eee ea! 2B WiS G:C 2205 eee ee eee 1,10Case: 09-5025 Document: 00615454705 Filed: 03/26/2009 Page: 5 STATEMENT REGARD! ORAL ARGUMENT Although petitioner Hamblen (hereinafter “defendant”) has requested oral argument, the United States respectfully submits that oral argument is not necessary in this case. A thorough review of the facts, issues, and applicable law in this case are adequately set forth in the briefs of the parties, and oral argument would not provide significant assistance to this Court in rendering an appropriate decision.Case: 09-5025 Document: 00815454705 Filed: 03/26/2009 Page: 6 STATEMENT OF JURISDICTION This Court has jurisdiction over the defendant's appeal pursuant to 28 U.S.C. $1291. STATEMENT OF THE IS! WHETHER THE DISTRICT COURT PROPERLY DENIED DEFENDANT'S 28 U.S.C. § 2255 PETITION.Case: 09-5025 Document: 00615454705 Filed: 03/26/2009 Page: 7 STATEMENT OF THE CASE On December 14, 2005, defendant was indicted on one count of illegally possessing nine machine guns in violation of 18 U.S.C. § 922(0), and one count of, possessing unregistered firearms, namely the nine machine guns, in violation of 26 U.S.C. § 5861(4). United States v. Hamblen, 239 F. App’x. 130, 131-132, 2007 WL 1804393, **1 (6th Cir. 2007)(unpublished). A jury trial commenced on May 30, 2006. On May 31, 2006, defendant was convicted on both counts. Id. at 134. On August 25, 2006, defendant was sentenced to 15 months imprisonment with two years of supervised release on cach count, to run concurrently. A timely notice of appeal followed on September 1, 2006, Id, at 134, The mandate from the Sixth Cireuit Court of Appeals was filed June 25, 2007 affirming the judgment of the district court. Hamblen y. United States, 2008 WL 5136586, *1 (M.D. Tenn. Dec. 5, 2008)(unpublished). Defendant's Petition for Writ of Certiorari was filed on October 12, 2007 and denied on October 27, 2007. Id. at *1. On October 24,2008, defendant filed a Motion to Vacate, Set Aside, or Correct Sentence. (R. 1: Motion). The government filed a response on November 6, 2008. (R. 3: Response). On December |, 2008, the defendant filed a memorandum in support of his October 24, 2008 motion and the government filed a response to the memorandum on December 5, 2008. (R. 6: Memorandum in Support; R. 7:Case: 09-5025 Document: 00615454705 Filed: 03/26/2009 Page: 8 Response by government). On December 5, 2008, the district court filed an Order and Memorandum denying the defendant's Motion to Vacate. (R. 8: Memorandum; R.9: Order), A timely notice of appeal followed. (R. 11: Notice of Appeal).Case: 09-5025 Document: 00615454705 Filed: 03/26/2009 Page: 9 STATEMENT OF THE FACTS On December 14, 2005, defendant was indicted on one count of illegally possessing nine machine guns in violation of 18 U.S.C. § 922(o), and one count of possessing unregistered firearms, namely the nine machine guns, in violation of 26 U.S.C. § 5861(d). Trial began May 30, 2006. At trial, defendant did little to contest the fact that the elements of the offense were satisfied, but sought to assert a Second. Amendment defense. However, the court instructed the jury, in pertinent part: The Second Amendment to the United States Constitution guarantees a collective, rather than an individual, right to keep and bi arms. There is no constitutional right for an individual to possess a firearm. The Federal statutes at issue in this case do not conflict with the Second Amendment, The collective right of the militia is limited to keeping and bearing arms that have some reasonable relationship to the preservation and efficiency of a well-regulated militia. The Second Amendment is not a defense to the charges set forth in the Indictment in this case. It is, up to the Court, not the jury, to determine what is constitutional. On May 31, defendant was convicted of both counts. On August 25, 2006, defendant was sentenced to 15 months imprisonment plus two years supervised release on each count, to run concurrently, Defendant thereafter appealed. Defendant’s appeal was rejected by the Sixth Circuit on June 21, 2007. Hamblen, 239 F. App’x. 130, 2007 WL 1804393. Thereafter, the United States decided District of Columbia v. Heller, 128 S. Ct.Case: 09-5025 Document: 00615454705 Filed: 03/26/2009 Page: 10 2783 (2008). In Heller, the Supreme Court held that the Second Amendment provides an individual with a right to possess and use a firearm for lawful purposes, such as self-defense within the home. In so doing, the Court held unconstitutional two District of Columbia statutes to the extent that they totally banned handgun possession in the home and required all firearms within homes to be kept inoperable at all times, and thus unavailable for the lawful purpose of self-defense. At the same time, however, the Supreme Court made clear that "the right secured by the Second Amendment is not unlimited." Heller, 128 S. Ct.at 2816. The Court emphasized that rohi “nothing in [its] opinion should be taken to cast doubt on longstandi tions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings ..." Id, at 2816-17, The Court intended its identification of such "presumptively lawful regulatory measures only as examples," not as an exhaustive list. Id. at 2817 1.26. Thus, the Supreme Court made clear that, like other constitutional rights, the individual right protected by the Second Amendment is not absolute, but is subject to appropriate restrictions. After Heller was decided, defendant filed a Motion to Vacate, Set Aside or Correct Sentence. The Motion notes the U.S. Supreme Court’s recognition of an individual right to bear arms, then claims, in paragraph 49, that defendant “shouldCase: 09-5025 Document: 00615454705 Filed: 03/26/2009 Page: 11 have been allowed the opportunity to argue that the Second Amendment created an idual right and therefore a defense.” Defendant further stated that the limitations placed on the Second Amendment right to bear arms in Heller can not square with the Supreme Court’s earlier decision in United States v, Miller, 307 U.S. 174 (1939). In making this argument, defendant asked the district court to find that the Supreme Court misinterpreted its own precedent and wrongly placed the possession of machine guns outside the protections of the Second Amendment. The district court denied the defendant’s Motion to Vacate and stated in its accompanying Memorandum that “[w]hatever merit there is to that argument, ..., this [cJourt is bound by the Heller opinion as written.” Defendant has appealed the district court’s determination and the case is not before this Court.Case: 09-5025 Document: 00615454705 Filed: 03/26/2009 Page: 12 SUMMARY OF THE ARGUMENT In his Motion to Vacate, Set Aside, or Correct Sentence, defendant asserts that he “should have been allowed the opportunity to argue that the Second Amendment created an individual right and therefore a defense.” To the extent defendant claims that his conviction should be invalidated because he was not permitted to make this argument to the jury, he must be denied any relief because “[iJt is the function of the trial judge to determine the law of the case. It is impermissible to delegate that function to a jury through the submission of testimony on controlling legal principles.” United States v. Zipkin, 729 F.2d 384, 387 (6th Cir. 1984). Accordi Ys defendant has no basis from which to argue that he should have been allowed to argue to the jury “that the Second Amendment created an individual right and therefore a defense.” Alternatively. the defendant may be relying on the Supreme Court’s opinion in Heller, 128 S. Ct. 2783, to argue that the Second Amendment grants him an individual right to bear arms and that this right invalidates his conviction for possessing nine machine guns in violation of 18 U.S.C. § 922(0). Defendant's argument in this regard is also without merit and should be disregarded because, in Heller, the Supreme Court stated: “the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes .Case: 09-5025 Document: 00615454705 Filed: 03/26/2009 Page: 13. Id, at 2815-16. That the Supreme Court did not consider machine guns to be weapons typically possessed by law-abiding citizens for lawful purposes (and therefore covered by the Second Amendment) is clear. First, in Heller. the Supreme Court explained that the test for whether possession of a particular kind of weapon was protected by the Second Amendment was not whether it was “useful in military service”— an interpretation that would provide a right to keep “M-16 rifles and the like” at home. Id. at 2817. By declining to rely on such a test and noting that the rejected test would give individuals a right to possess “M-16 rifles and the like” (i.e. machine guns), the ‘Supreme Court clearly indicated that it did not interpret the Second Amendment as protecting an individual's right to possess machine guns. Further, the Heller opinion placed outside the Second Amendment’s protections “dangerous and unusual” weapons that have historically stood outside of the right to bear arms, See Heller, 128 S, Ct. at 2817 (citing 4 Blackstone 148-149 (1769)). Defendant acknowledges that Heller did not extend the Second Amendment’s protections to the possession of machine guns by stating in his brief that “[i]t is clear that the Heller Court does not want its decision to condone the possession of weapons such as the machine guns possessed by Mr. Hamblen in this case” (Defendant's brief at 20). This admission forecloses defendant's argument by asking this Court toCase: 09-5025 Document: 00615454705 Filed: 03/26/2009 Page: 14 construe a Supreme Court holding in a manner that is inconsistent with the Supreme Court's expressed intent. The only basis for defendant's position is his contention that the Supreme Court in Heller wrongly interpreted another Supreme Court case- United States v, Miller, 307 U.S. 174 (1939). The district court properly recognized that defendant’s position is foreclosed by Heller when it denied defendant’s request for relief in the instant case writing “[wJhatever merit there is to that argument, . . this [clourt is bound by the Heller opinion as written.” The Sixth Circuit Court of Appeals is also bound by Heller and, therefore, should affirm the district court’s denial of defendant’s position. As defendant concedes in his brief, if he unlawfully possessed the machine ion for guns, there is no need to reach the registration issue posed by his com violation of 26 U.S.C. § 5861(d). Because Heller did not extend Second Amendment protections to an individual’s possession of machine guns, defendant unlawfully possessed the machine guns at issue in violation of 18 U.S.C. § 922(0). This unlawful possession of the machine guns renders moot the second argument in defendant’s brief, that because his possession of the machine guns was lawful, registration of the guns was not required by law.Case: 09-5025 Document: 00615454705 Filed: 03/26/2009 Page: 15 STANDARD OF REVIEW In reviewing the denial of a 28 U.S.C. § 2255 petition, this Court “applies a de novo standard of review of the legal issues and will uphold the factual findings of the district court unless they are clearly erroneous.” Preveler v, United States, 269 F.3d 693, 698 (6th Cir. 2001) citing Hilliard v. United States, 157 F.3d 444, 447 (6th Cir. 1998)(citing Gall v. United States, 21 F.3d 107, 109 (6th Cir. 1994). 10Case: 09-5025 Document: 00615454705 Filed: 03/26/2009 Page: 16 ARGUMENT THE DISTRICT COURT PROPERLY DENIED DEFENDANT'S 18 U.S.C. § 2255 PETITION. In his Motion to Vacate, Set Aside, or Correct Sentence, defendant asserts that he “should have been allowed the opportunity to argue that the Second Amendment created an individual right and therefore a defense.” In making this statement, defendant appears to assert that the trial court improperly denied him the opportunity to present the jury with a defense grounded in the Second Amendment. If defendant is indeed claiming that he is entitled to relief because the trial court precluded him from presenting evidence relevant to, or arguing, a constitutional defense, then his Motion to Vacate, Set Aside, or Correct Sentence was properly denied by the district court. This conclusion results from the Sixth Circuit’s holding that it is the function of the trial judge to determine the law of the case. It is impermissible to delegate that function to a jury through the submission of testimony on controlling legal principles.” United States v. Zipkin, 729 F.2d 384, 387 (6th Cir. 1984). Accordingly, this Court should affirm the ruling below if it determines defendant to be claiming that he is entitled to relief because he was not permitted to present a constitutional defense to the jury at trial. Alternatively, defendant may contend that his conviction under 18 U.S.C. §Case: 09-5025 Document: 00615454705 Filed: 03/26/2009 Page: 17 922(0) should be vacated because the statute under which he was convicted violates the Second Amendment. This position is without merit. The Supreme Court’s opinion in District of Columbia v. Heller placed machine guns outside the protections of the Second Amendment. 128 S. Ct. at 2815-16. Defendant cannot avoid dismissal of his petition by arguing that while Heller correctly found that the Second Amendment provides an individual right to possess firearms, the Supreme Court wrongly construed its own precedent to conclude that “dangerous and unusual” weapons, stich as machine guns, are not within the Second Amendment's protections Heller is the law and must be applied by this Court to affirm the district court's order denying the defendant’s Motion to Vacate. A, The Second Amendment Does Not Protect An Individual Right to Possess Uncommon Weapons That Are Not Typically Possessed in the Home Such as the Machine Guns Possessed by the Defendant. Defendant was convicted of (1) illegal possession of the nine machine guns; and (2) failure to register the nine machine guns, each of which is a type of “firearm” under 26 U.S.C. § 5845(a) that can only be lawfully possessed if registered with the federal government pursuant to 26 U.S.C. § 5841. Petitioner claims that he has a Second Amendment right to possess machine guns without registering them. There is no such right -- as Heller makes clear -- and as two circuits have concluded since Heller. See United States v. Gilbert, 2008 WL 2740453, at *2 (9th Cir. 2008) 12Case: 09-5025 Document: 00615454705 Filed: 03/26/2009 Page: 18 (unpublished) (“Under Heller, individuals still do not have the right to possess machine guns or short-barreled rifles, as Gilbert did{.]”); United States v. Fincher, 538 F.3d 868, 874 (8th Cir. 2008)(“[U]nder Heller, [defendants] possession of the (machinegun and unregistered sawed-off shotgun] is not protected by the Second Amendment”) ‘The firearms at issue in Heller was a handgun, not machine guns. In explaining the scope of the Second Amendment, the Supreme Court discussed both the nature of possession that is permissible and the sorts of weapons protected by the Second Amendment. The Court concluded that the Second Amendment addresses only weapons “in common use,” and, as an historical matter, the Amendment's scope was tied to the “lawful weapons” that militia members would bring from home “to militia duty.” 128 S. Ct. at 2817. According to the Supreme Court, the Second Amendment “does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes .. ..” Jd. at 2815-16. Following Heller, the test is not, as the Supreme Court explained, whether the weapons are “most useful in military service,” an interpretation that would provide aright to keep “M-16 rifles and the like” at home. Heller, 128 S. Ct. at 2817. Rather, the test is whether the weapons are “typically possessed” in the home and “in common use” by “law-abiding citizens for lawful purposes.” Jd. at 2815-16. BCase: 09-5025 Document: 00615454705 Filed: 03/26/2009 Page: 19 Conversely, the Supreme Court found that the Second Amendment has never been construed to protect “the carrying of ‘dangerous and unusual weapons.” /d. at 2817. This issue was more specifically discussed in the Supreme Court’s analysis of its prior decision in Miller, 307 U.S. 174. In Miller, the defendants had been indicted under the National Firearms Act of 1934 for transporting in interstate commerce an unregistered sawed-off shotgun. Heller re-affirmed that the Miller decision turned on the fact that the type of weapon at issue there ~- a sawed-off shotgun -- was not eligible for Second Amendment protection. Heller, 128 S. Ct. 2814. The Heller Court stated, “Miller stands only for the proposition that the Second Amendment right, whatever its nature, extends only to certain types of weapons.” Id. The Heller Court then considered what types of weapons are protected under the Second Amendment, writing: We may as well consider at this point (for we will have to consider eventually) what types of weapons Miller permits. Read in isolation, Miller's phrase “part of ordinary military equipment” could mean that only those weapons useful in warfare are protected. That would be a startling reading of the opinion, since it would mean that the National Firearms Act’s restrictions on machineguns (not challenged in Miller) might be unconstitutional, machineguns being useful in warfare in 1939. We think that Miller's “ordinary military equipment” language must be read in tandem with what comes after: “{O]rdinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.” The traditional militia was formed from a pool of men bringing arms “in common use at the time” for lawful 4Case: 09-5025 Document: 00615454705 Filed: 03/26/2009 Page: 20 purposes like self-defense. “In the colonial and revolutionary war era, [small-arms] weapons used by militiamen and weapons used in defense of person and home were one and the same.” Indeed, that is precisely the way in which the Second Amendment's operative clause furthers the purpose announced in its preface. We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns. That accords with the historical understanding of the scope of the right... Heller, 128 S, Ct. at 2815-16 (emphasis added) (internal citations omitted). See id. at 2817 (addressing why “weapons that are most useful in military service -- M-16 rifles and the like -- may be banned,” consistent with the right protected by the Second Amendment). The Heller Court’s references to the fact that weapons like machine guns do not fall within the scope of the Second Amendment right make clear that the charges in this case do not infringe on any constitutional right of the defendant. The charges are based on his possession of machine guns. Such weapons are not akin to a handgun, the type of weapon that individuals have a right to maintain in their homes for self defense under Heller. Indeed, Heller and Miller make clear that machine guns are not covered by the Second Amendment. The obvious potential for substantial public safety risks presented by machine guns plainly supports that conclusion.Case: 09-5025 Document: 00615454705 Filed: 03/26/2009 Page: 21 Typical handguns mect the test of “common use” and regular possession in the home, and it is this feature that brings handguns, as a class of arms, within the scope of the Second Amendment.' The firearms at issue here (machine guns), however, do not meet the threshold for a type of firearm that is within the protection of the Second Amendment. They are neither a weapon in “common use” nor weapons that people would typically possess in the home for lawful purposes like self-defense. Rather, such weapons are the sort of “dangerous and unusual” weapons that have historically stood outside of the right to bear arms. See Heller, 128 S. Ct. at 2817 (citing 4 Blackstone 148-149 (1769). See also United States v. Gilbert, 2008 WL 2740453, at *2 (9th Cir. 2008) (unpublished) (“Under Heller, individuals still do not have the right to possess machine guns or short-barreled rifles, as Gilbert did[.J"); United States v. Fincher, $38 F.3d 868, 874 (8th Cir. 2008)(“[U]nder Heller, [defendant's] possession of the [machinegun and unregistered sawed-off shotgun] is not protected by the Second Amendment.”). Likewise, the machine guns at issue in the present case are not firearms within the scope of the Second Amendment's protections. Therefore, this appeal should be denied. ' That a class of firearms is eligible for Second Amendment protections does not mean that any possession of such a firearm is constitutionally protected. For example, as noted in Heller. the prohibition against felons possessing firearms is presumptively constitutional, and that remains true even if the firearm possessed is ahandgun, Heller, 128 S. Ct. at 2816-17 16Case: 09-5025 Document: 00615454705 Filed: 03/26/2009 + Page: 22 B. District of Columbia v. Heller Forecloses Defendant's Argument That He Had A Second Amendment Right to Possess Machine Guns. Defendant asserts that Heller was wrong in “arguably h{olding] that such arms would not be protected under the Second Amendment.” (Defendant’s brief at 12). Defendant’s disavowal of Heller in this regard is puzzling, since Heller is the sole basis of defendant's argument. See Defendant’s brief at 9 (claiming that in light of the ruling in Heller, “the lower court erred in not allowing him to mount a defense based upon the Second Amendment”) Defendant goes to great lengths to explain why the majority in Heller was incorrect and to point out alleged errors in Justice Scalia’s opinion. There is no need to address here whether defendant is correct to assert that Heller misinterpreted Miller. Suffice it to say that: (a) Heller is the law; and (b) defendant cannot embrace those aspects of Heller he likes (i.e., its holding that there is - to a certain extent - an individual right to possess firearms) while dispensing with those aspects he dislikes (ce, its pronouncement that any such individual rights do not apply to the possession of machine guns). Additionally. this Court has long held congressional regulation of firearms constitutional, specifically finding both 18 U.S.C. §§ 922 and 924 constitutional. United States v. Fraz ier, 2008 WL 4949153, *5 (6th Cir. 2008) (unpublished opinion) 7Case: 09-5025 Document: 00615454705 Filed: 03/26/2009 Page: 23. citing United States v. Warin, 330 F.2d 103, 107 (6th Cir. 1976)("“Even where the Second Amendment is applicable, it does not constitute an absolute barrier to the congressional regulation of firearms.”). The reality is that Heller, the very case that defendant relies on to seek relief from his conviction for possession of machine guns, disdains any such relief. As defendant himself notes, “ Jt is clear that the Heller Court does not want its decision to condone the possession of weapons such as the machine guns possessed by Mr. Hamblen in this case.” (Defendant's brief at 20). Defendant is exactly right - which is why he cannot herein invoke Heller to condone the machine gun possession for which he was convicted. C. Because the Second Amendment Does Not Invalidate Defendant's Conviction Under 18 U.S.C. § 922(0), Defendant's Argument Regarding His Conviction Under 26 U.S.C. § 5861(d) is Moot. As defendant states in his brief, if he unlawfully possessed the machine guns, there is no need to reach the “registration issue.” The Supreme Court has stated that the Second Amendment does not protect an individual’s right to possess machine guns, Accordingly, the Second Amendment cannot be said to invalidate the defendant’s conviction under 18 U.S.C. § 922(0). This renders moot the second issue raised in defendant's brief. This Court should, therefore, deny the defendant any relief with respect to his conviction under 26 U.S.C. § 5861(d). See United States v. 18Case: 09-5025 Document: 00615454705 Filed: 03/26/2009 Page: 24 Bournes, 339 F.3d 396, 399 (6th Cir. 2003) (upholding conviction under 26 U.S.C. § 5861(d) where no violation of 18 U.S.C. § 922(0) was charged-the defendant “could have complied simply by electing not to possess the machine guns at issue in [the] case.”).Case: 09-5025 Document: 00615454705 Filed: 03/26/2009 Page: 25 CONCLUSION Wherefore, for the foregoing reasons, the district court’s dismissal of the defendant's 18 U.S. . § 2255 petition should be affirmed, Respectfully submitted, EDWARD M. YARBROUGH United States Attorney for the Middle District of Tennessee MATTHEW J. EVERITT Assistant United States Attorney 110 Ninth Avenue South, Suite A-961 Nashville, Tennessee 37203-3870 (615) 736-5151 Attorney for Respondent-Appellee CERTIFICATE OF SERVICE The undersigned certifies that a copy of the foregoing brief has been served through this Court’s electronic filing system on the defendant’s counsel, Jeffrey S. Frensley, 21! Third Avenue North, P.O. Box 198288, Nashville, Tennessee 37219 on this, the 26th day of March, 2009. s/ Matthew J, Everitt MATTHEW J. EVERITTCase: 09-6025 Document: 00615454705 Filed: 03/26/2009 Page: 26 ADDENDUM APPELLEE’S DESIGNATION OF RELEVANT DISTRICT COURT DOCUMENTS Appellee, pursuant to 6 Cir. R. 28(c) and 6 Cir. R. 30(b), hereby designates the following relevant district court documents in the electronic record: Description of Document Record Entry No. Motion to Vacate 1 Response Memorandum in Support of Motion to Vacate Response Memorandum Order welelatale Notice of Appeal ul 21