Assistant federal prosecutor Larry Ferrell responded to the appeal with a 69-page brief April 17.
Waller, 41, pleaded guilty Oct. 3 to threatening Cheryl Brenneke, his wife's sister and the guardian of his three children, on the Internet site Topix. After hearing emotional testimony from Brenneke and Ferrell's plea to significantly vary from the suggested six- to 12-month sentence, Judge Stephen Limbaugh imposed the maximum sentence of five years on Clay Waller.
In addition to sentencing him, Limbaugh said Waller more than likely murdered his wife, Jacque Waller, who has been missing since June 1.
Authorities issued a murder warrant for Clay Waller on April 23, the same day he was charged with second-degree murder in connection to Jacque Waller's disappearance.
Clay Waller's attorney for the federal case, Scott Tilsen, appealed the sentence and the departure from the sentencing guidelines, stating the district court miscalculated the sentencing guidelines, the maximum sentence was unreasonable, the court erred in finding Waller murdered his wife and that uncharged criminal conduct, specifically murder, cannot be the basis for an upward departure in sentencing.
In his brief, Ferrell defends the maximum sentence, saying the court considered the need to defend Brenneke, whom Waller threatened to kill. The brief said evidence, including a reported confession Clay Waller made to his father, proved Clay Waller killed his estranged wife. The brief argued that the uncharged conduct could be considered in sentencing.
Tilsen said he intends to file a reply brief early this week.
"The next important step is the oral argument, which has not been scheduled," he said.
The case has been placed in the docket for the U.S. Court of Appeals Eighth Circuit, Tilsen said. He said he expects the oral arguments to be scheduled sometime in mid-June.
However, judges on the court can bypass the oral arguments and use the posted briefs as the basis for their decision.
Waller still faces the murder charge in Cape Girardeau County. A trial judge has yet to issue a writ requiring Clay Waller be returned from prison in Oakdale, La.
"With him being in federal custody, it will take a while," said Cape Girardeau County Sheriff John Jordan. "We expect to see paperwork on it in the next two to three weeks."
Jordan said he expects Waller to remain under maximum security while in county custody.
Scott Reynolds, who has represented Clay Waller in state court proceedings, said Friday he didn't have a time frame for when Waller would be brought back to Missouri.
599 Independence St., Cape Girardeau, MO