Waller pleaded guilty Oct. 3 in federal court to a charge of making a threat against Cheryl Brennecke, his missing wife's sister and guardian of his children, on the online message board Topix. He faces up to five years in prison and up to a $250,000 fine for a charge of transmitting through interstate commerce a threat to injure. Waller was supposed to be sentenced Dec. 19, but the hearing will now commence Jan. 3, according to an order filed Thursday by U.S. District Judge Stephen N. Limbaugh Jr.
Federal prosecutor Larry Ferrell wrote in a motion that the hearing will involve "substantial issues of both law and fact which must be resolved by the court."
Since Waller's initial presentence investigation report became available earlier this month, both sides have different opinions on its suggestion he spend up to 10 months in federal prison. Ferrell believes the sentence was suggested without considering other factors, like Brennecke's vulnerability, while Waller's attorney, Scott Tilsen, wrote in a memorandum that his client deserves the lightest sentence within the guidelines' range because the offense is his first felony.
Waller's preliminary presentence report suggests Waller spends six to 10 months in prison.
On Topix, Waller threatened to kill Brenneke if she hurt his three children. Brennecke gained custody of the children after her sister, Jacque Waller, went missing June 1 and Clay Waller was taken into custody on state charges for theft and harassment.
Cape Girardeau County Prosecuting Attorney Morley Swingle anticipates filing a murder charge against him. Clay Waller has denied involvement in his wife's disappearance.
Ferrell suggested that departures from the guidelines are necessary because Clay Waller's criminal history "substantially underrepresents" the likelihood that he will commit other crimes, Ferrell wrote.
In a memorandum about the sentencing report, Tilsen writes that the guidelines are correct, and Waller should serve less time in a federal penitentiary because of the four months he has spent in federal custody.
"Mr. Waller requests that the court impose a sentence near the bottom of the advisory guideline range of six months," Tilsen wrote in the memo. "He further suggests that that sentence ... consist of the four-and-a-half months that he has served in federal custody in solitary confinement, together with 60 days of home detention."
The sentence would "deprive Waller of liberty for a slightly longer than the bottom of the advisory guideline range" and recognize the unusual conditions of solitary confinement he faced, Tilsen wrote. The sentence would also allow Waller to work and have better access to his attorney to respond to "charged and uncharged" allegations against him.
499 Independence St., Cape Girardeau, MO