(MCT) An attorney for Carl Tomblin is asking a federal judge to impose a lesser or alternative sentence for his charge of illegally selling a prescription painkiller.
Tomblin, 50, of Chapmanville, pleaded guilty in March to illegally distributing oxymorphone, the generic form of Opana. Federal prosecutors say a confidential informant made five controlled purchases from Tomblin, who is Gov. Earl Ray Tomblin’s brother,
According to court documents, Carl Tomblin admitted he distributed between 23 of 32 pills from the spring of 2013 until this January, when he encountered law enforcement.
His attorney Robert Kuenzel, filed a sentencing memorandum last week, asking the court to impose an alternative sentence, specifically mentioning home confinement.
In a footnote, Kuenzel noted a majority of the calculations for his sentence is based on his admitted conduct.
“Had Mr. Tomblin not cooperated with law enforcement and asserted his right to counsel, the government would be in a position of attributing only 5 pills to Mr. Tomblin,” the footnote reads. “In essence, Mr. Tomblin is being penalized for his truthfulness and his cooperation with law enforcement.”
Kuenzel also said his client’s criminal history category should be lowered, saying a downward departure may be warranted if “the defendant had two minor misdemeanor convictions close to 10 years prior to the instant offense and no other evidence of prior criminal behavior in the intervening period.”
The motion says Carl Tomblin pleaded guilty in August 2003 to possession of marijuana but the conviction didn’t happen until August 2013, “coinciding with the instant conduct by a few months.”
It also mentioned a misdemeanor criminal conviction in Tennessee, where he was ordered to pay a fine. Kuenzel says this conviction shouldn’t serve as an increase in his criminal history category.
The memorandum also says Carl Tomblin didn’t use violence and he wasn’t engaged in a “continuing criminal enterprise.”
Kuenzel said if the court accepted the reduction, the recommended sentence would be 8-13 months but it also would allow him to be considered for home confinement. The motion says Carl Tomblin would benefit from continued Suboxone treatment and monitoring and would pay costs himself instead of “society footing the bill for a person with a history of substance abuse who sold five pills to the Government’s informant.”
Last month, Kuenzel moved the court to continue his sentencing hearing originally scheduled for June 25, so he could resolve his outstanding charge in Tennessee. A new date has not yet been set.
Contact writer Andrea Lannom at Andrea.Lannom@dailymailwv.com or
304-348-5148. Follow her at www.twitter.com/AndreaLannom.
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