CHARLESTON, W.Va. -- A former Upper Big Branch Mine superintendent is asking a federal judge for leniency after admitting that he plotted to skirt safety rules and cover up the resulting hazards at the Raleigh County operation where 29 miners died in an April 2010 explosion.
Gary May asked U.S. District Judge Irene Berger to consider sentencing him to home confinement and probation, or at least to less than the 15 to 21 months in jail recommended by federal sentencing guidelines.
Tim Carrico, May's attorney, cited his client's lack of a previous criminal record and his ongoing cooperation with the federal investigation of the Upper Big Branch Mine Disaster.
"The underlying investigation relates to perhaps the worst mining tragedy in the history of this state, and the United States," Carrico wrote in a legal memorandum filed Monday. "Mr. May expresses sympathy and is deeply sorry for victims who lost their lives along with their respective family members and friends."
Carrico suggested that information regarding May's "important cooperation" with prosecutors could be provided to Berger privately for the judge to consider as part of her sentencing decision.
In a separate legal memo, Assistant U.S. Attorney Steve Ruby urged Berger to issue a sentence for May at the high end or even above the advisory guideline range, citing "the risk to human life and health" from criminal mine safety violations like those cited in May's plea agreement. Ruby said prosecutors could eventually ask for a reduction in May's sentence, but that it's too early to do that.
"It is true that Defendant has cooperated with the United States' investigation of conduct at the former Massey Energy Company," Ruby wrote.
"Defendant's cooperation has been valuable, and it is entirely possible that before the investigation is concluded, the value of his cooperation will warrant a motion for downward departure for substantial assistance," Ruby wrote. "At this stage, though, the value of Defendant's cooperation cannot be properly assessed for purposes of such a motion."
Carrico and Ruby had both sought unsuccessfully to convince Berger to delay May's sentencing. The judge refused, and a sentencing hearing is scheduled for Jan. 17. May faces a maximum sentence of five years in prison for one felony count.