Waller was sentenced to five years in prison in January after he pleaded guilty in October to threatening Cheryl Brenneke, his sister-in-law and guardian of his three children, on an Internet message board in July. Brenneke's sister, Jacque Waller, has been missing since June 1, and Clay Waller is considered a suspect in her disappearance, although no charges have been filed against him.
Waller's attorney for the federal trial, Scott Tilsen, electronically filed an appeal to the sentence Wednesday afternoon, but it was unavailable to the public because it had not been approved as of 5:15 p.m. Wednesday.
Tilsen has declined to comment on the appeal, but said after Waller's Jan. 3 sentencing hearing that he had planned to file an appeal before his client was sentenced.
Federal Judge Stephen Limbaugh differed greatly from federal guidelines that suggest a six- to 12-month sentence and gave him the maximum five-year sentence. In doing so, Limbaugh said that, based on a preponderance of evidence, he believed Clay Waller murdered Jacque Waller.
Tilsen objected to that notion after the hearing and said he would appeal the sentence because he believed Clay Waller was being punished for a crime he has not been charged with or convicted of.
"We could have a system where we punish people for crimes they're not charged with, but that would not be the system our founding fathers implemented," Tilsen said after the hearing.
The original deadline for the appeal was Feb. 7, but Tilsen successfully submitted a motion that day that extended the deadline to Wednesday. Tilsen wrote that briefs in two different cases both had deadlines near Feb. 7 and that he needed more time to adequately prepare the brief for Waller's appeal.
Federal prosecutor Larry Ferrell will have 21 days to file his brief supporting Limbaugh's decision once the appeal is approved. After Ferrell submits his argument, Tilsen must file a response within seven days.
Ferrell has declined to comment on the appeals process.
A panel of three judges will examine the arguments, according to the U.S. federal court website. Although some cases are decided on the basis of written briefs alone, many cases are selected for oral arguments before the court, according to the website.
Waller threatened to kill Brenneke if she hurt his three children. Brenneke gained custody of the children after Jacque Waller went missing and Clay Waller was taken into custody on state charges for theft and harassment.
Clay Waller was reportedly the last person to see his wife before she disappeared, and Cape Girardeau County Prosecuting Attorney Morley Swingle has said in court filings that he expected to file a murder charge against him. Waller has denied involvement in his wife's disappearance. He is serving his sentence in the Federal Correctional Institution in Oakdale, La.
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