Clay Waller asks for six-month sentence, including time served

Clay Waller would like his sentence on federal Internet threatening charges to be roughly six months in prison, less four-and-a-half months for time served, according to a memorandum filed by his attorney Wednesday.

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.

Since Waller's initial presentence investigation report became available last week, both sides have different opinions on its suggestion he spend up to 10 months in federal prison. Federal prosecutor Larry Ferrell believes the sentence was suggested without considering other factors, like Brennecke's vulnerability, while Waller's attorney, Scott Tilsen, wrote in Wednesday's memorandum that his client deserves the lightest sentence within the guidelines' range because the offense is his first felony.

The report is preliminary, and the defense and prosecution have the opportunity to raise issues with the report before the final one is made, Ferrell said.

"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.

Waller's wife, Jacque Waller, went missing June 1. Clay Waller was the last known person to see her before she disappeared, and Cape Girardeau County Prosecuting Attorney Morley Swingle anticipates filing a murder charge against him. Clay Waller denies involvement in Jacque Waller's disappearance in the motion.

Almost two months after Jacque Waller went missing, Clay Waller threatened on Topix to kill Brenneke if she hurt his three children. Brennecke gained custody of the children shortly after her sister went missing.

In the memo, Tilsen wrote that while the threat was illegal, it does not warrant more time in prison for Clay Waller.

"The nature of the offense, a single threat conditional in nature, made emotionally and expressing concern for the well-being of his children ... is not an extreme offense within the scope of the statute," Tilsen wrote.

The presentencing report assigns levels to offenses based on a suspect's criminal background and the seriousness of the offense. Clay Waller's final offense level on the preliminary report is 10, which constitutes six to 10 months in a federal penitentiary as a starting point for sentencing.

Ferrell suggests 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.

The allegations against Clay Waller concerning his wife should not be factored into his federal sentence, Tilsen wrote.

"Criminal history points are assigned only on the basis of prior convictions by a jury or plea of guilty," he wrote.

Waller will be sentenced Dec. 19.

psullivan@semissourian.com

388-3635

Pertinent address:

499 Independence St., Cape Girardeau, Mo.