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Convicted UBB superintendent seeks lighter sentencing

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A former superintendent of the Upper Big Branch mine is requesting a lighter sentence following conviction of felony charges to federal conspiracy charges revolving around an explosion that killed 29 people in Raleigh County.

Through a court filing, Gary May's attorney Tim Carrico requested that U.S. District Judge Irene Berger gives May a lighter sentence. May has been cooperating with U.S. Attorney Booth Goodwin and his office in investigating potential criminal violations of mine safety law at the mine, which was owned by Massey Energy at the time of the explosion.

May is charged with conspiring to conceal safety hazards at Upper Big Branch, including providing advance notice of federal and state inspections. Providing advance notice allowed for the cover-up of potential violations and is against federal law.

"While there does not appear to be a link between Mr. May's conduct as described in the (pre-sentence report) and the subject explosion, he acknowledges the wrongfulness and seriousness of his own acts, behavior and decisions constituting the basis for  his conviction," Carrico wrote. "He acknowledges that as a supervisor at UBB he should have disassociated from the corporate wide company policy referenced in the (pre-sentence report) at paragraph 78.  He did not, and for this reason he stands convicted, and must now be subject to sentencing."

Carrico also cited May's lack of a prior criminal record.

"Other than the matters forming the basis of his conviction, Mr. May has led an exemplary life," Carrico continued. "He has worked extremely hard to care and provide for his wife and two daughters."

Federal guidelines recommend that May's crimes be punished with 15 to 21 months in jail. The U.S. Attorney's office, through U.S. Attorney Steve Ruby, urged the judge to stay with the federal guidelines for sentencing despite his cooperation.

"There are factors in this case that are favorable to defendant, of course, but they do not warrant a sentence below the top of the advisory guidelines range," Ruby wrote. "It is true that defendant has cooperated with the United  States' investigation of conduct at the former Massey Energy Co. Defendant's cooperation has been valuable, and it is entirely possible that before that investigation is concluded, the value of his cooperation will warrant a motion for downward departure for substantial assistance."

The U.S. Attorney's office said it did not doubt May's claim that corporate culture influenced his behavior. Still, Ruby wrote, May ultimately is personally responsible for his behavior and should not receive a lighter sentence.

"Defendant was, as he acknowledges, a mine superintendent with great discretion in the operations of his mine," Ruby wrote. "The United States has considered the setting in which Defendant acted and his overall role in his organization, and it has given those factors weight in its decision not to seek a major upward variance, but they do not justify a sentence below the top of the advisory guidelines range."

A reduced sentence, Ruby wrote, could be possible in the future, but is not at this time appropriate.

Both parties had sought to delay sentencing, but a hearing is currently set for Jan. 17.