IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

UNITED STATES OF AMERICA, *

*

Plaintiff, *

*

V. * CR. NO.

JOHN TIERCE, * 2:06-CR-179-MHT 

*

Defendant. *

 UNOPPOSED MOTION TO CONTINUE SENTENCING

Comes now the defendant, by and through undersigned

counsel, and submits the following:

1. The sentencing in this case is set for Wednesday,

November 1, 2006, at 10:00 a.m.

2. Undersigned counsel has a criminal jury trial in the

U. S. District Court, Middle District of Alabama, set for jury

selection on Tuesday, October 24, 2006 with testimony to begin

on Monday, October 30, 2006, at 9:00 a.m. in the case of U.S.

v. White & Floyd, Case No. 3:05CR234-WHA.

3. The criminal jury trial referenced above is expected

to last about five days, and is expected to conflict with the

sentencing in the above styled case.

4. Undersigned Counsel needs additional time to resolve

certain issues of sentencing. For example, Counsel seeks to

convince the Government to file an additional Motion for

Departure pursuant to Rule 35, F.R.Crim.P, prior to sentencing

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rather than later, seeks to resolve a companion issue of

forfeiture/fine and seeks to resolve the necessity of calling

witnesses at defendant’s sentencing. Undersigned counsel is

reluctant at this time to get more specific with the reasoning

for defendant’s position since counsel does not want to

prejudice any negotiation with the Government other than to

state that the cooperation of defendant was lengthy and counsel

is seeking to verify certain matters. It appears to be in the

interest of judicial economy to address the issue of Rule 35

at sentencing rather than bring defendant back from prison at

some later time to do so.

5. Counsel will be selecting a jury in a state case

(State v Thomas, Case No. CC-06-739, Montgomery Circuit Court)

on Monday, October 23, 2006 and will proceed to trial sometime

during the week so as not to conflict with jury selection in

the Floyd case referred to above, therefore counsel’s time is

somewhat limited to accomplish all that needs to be done prior

to sentencing.

6. Undersigned counsel has already filed a motion in

another case with this District Court seeking to recess the

Floyd trial that will be ongoing in order to complete a

previously set sentencing in the Hall case also set with this

Court on the same date as this sentencing. The Hall case has

no contested issues. See U.S. v Floyd, Case No. 3:05cr234-WHA

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(Doc. No. 171), and U.S. v. Hall, Case No. 3:05cr207-MHT (Doc.

No. 136). Counsel did not file a motion in Floyd seeking a

recess for the sentencing in this case but did inform the Court

in Floyd that there was a potential conflict but that the

Government had filed an unopposed motion to Continue this case.

See Doc. No. 171 in Floyd. Counsel does not believe that

everything counsel needs to get done prior to sentencing in

this case can be accomplished in time, and if not may prolong

the time necessary for sentencing thus necessitating more

recess time from the ongoing trial in Floyd.

7. Undersigned Counsel had contacted AUSA Terry Moorer

regarding the Government’s position on a motion to continue

sentence and the Government did not object, and in fact the

Government went ahead and previously filed a motion to continue

sentencing (Doc. No. 13), but this court denied that motion on

October 20, 2006 (Doc. No. 14).

Wherefore, based upon the above defendant requests that

the sentencing date in this case be reset in order to not

conflict with the previously set criminal jury trial and to

give undersigned counsel more time to prepare for sentencing.

Respectfully submitted this 22nd day of October, 2006.

s/Jeffery C. Duffey

JEFFERY C. DUFFEY

Attorney for 

John Tierce

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600 South McDonough Street

Montgomery, AL 36104

Phone: 334-834-4100

Fax: 334-834-4101

email: jcduffey@aol.com

Bar No. ASB7699F67J

CERTIFICATE OF SERVICE

I hereby certify that on the 22nd day of October, 2006, I

electronically filed the foregoing with the Clerk of Court

using the CM/ECF system which will send notification of such

filing to the following: Terry Moorer, AUSA, P.O. Box 197,

Montgomery, AL 36101.

s /Jeffery C. Duffey

JEFFERY C. DUFFEY

Attorney for

John Tierce

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