The Register-Herald, Beckley, West Virginia

January 17, 2013

Former UBB superintendent sentenced to 21 months

By Wendy Holdren
Register-Herald Reporter

BECKLEY — Former Upper Big Branch mine superintendent Gary May was sentenced Thursday morning in U.S. District Court to 21 months in prison and three years of supervised released.

Judge Irene Berger also ordered that May pay a $20,000 fine.

May, 44, of Bloomingrose, pleaded guilty March 29 to conspiracy to defraud the federal government, including disabling a methane gas monitor and falsifying records. He also admitted to giving prior notice when mine safety crews were coming for an inspection.

After calculating May’s offense level, giving consideration to the fact that he has cooperated with the investigation and has no prior criminal history, his sentencing guideline ranged between 15 and 21 months in prison, one to three years of supervised release, and a fine of up to $40,000.

Assistant U.S. Attorney Steve Ruby asked Berger to put the sentence at the top of the guidelines because of the lives lost.

He said many cases of conspiracy are “white collar” and there is no risk to human life. However, with this case, Ruby said if May had not cooperated, the government would have tried for a much higher sentence.

Defense attorney Tim Carrico said he believed the sentencing guidelines properly reflected May’s acceptance of his crime and his cooperation.

“After MSHA initiated their investigation, Gary wanted to cooperate. It’s the right thing to do.”

Berger agreed to a motion to hear, In camera, how May has helped with other ongoing cases.

Carrico said May knew what he was doing was wrong, but he followed the rest of the organization.

He also noted May’s superb work record; he has recently been driving trucks to support his wife and two daughters.

Berger reviewed his violations, including giving advance notice about inspections, using codes and phrases to conceal giving advance notice, and falsifying records.

“I know what I did was wrong and criminal,” May said. “I apologize to my family and everyone affected by my actions.”

Berger then delivered her sentence of 21 months, three years supervised release and a fine of $20,000, “in light of the seriousness of the event.”

Half of the fine was ordered to be paid immediately, and the remaining $10,000 was ordered to be paid in installments.

He was not ordered to pay restitution because “there is no identifiable victim as the term is legally defined.”

Berger said she believed the sentence was sufficient, but not greater than necessary.

She emphasized that his actions resulted in a catastrophic way and it should serve as a deterrent to others to never disregard safety laws.

After his sentencing, Jack Bowden, who lost his son-in-law, Steve Harrah, in the UBB mine explosion, said he felt the sentence was “very light.”

“He may not meet his judgment here on Earth, but he will meet his maker one of these days,” Bowden said. “The system protects these people. They value profit and greed over safety.”

U.S. Attorney Booth Goodwin said this sentence sent a powerful message to this mine manager and others who would put profit over safety.

“If you violate mine laws and put miners at risk, you will go to jail.”

Goodwin said the investigation is still ongoing and his office will “take the investigation wherever it leads.”

David Hughart, ex-president of Massey Energy’s White Buck Coal Co., is scheduled to enter a plea before Judge Berger Feb. 28 at 10 a.m.

— E-mail: wholdren@register-herald.com