Waller attorney appeals 5-year sentence

Clay Waller's attorney filed an appeal Wednesday against the five-year sentence handed down for Waller's federal Internet threat conviction Tuesday.

Waller 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 federal prosecutor Larry Ferrell's plea to significantly vary from the suggested six- to 12-month sentence, Judge Stephen Limbaugh imposed the maximum sentence on Clay Waller, who has spent the last five months in federal custody.

In addition to sentencing him, Limbaugh said Waller more than likely murdered his wife, Jacque Waller, who has been missing since June 1.

Cape Girardeau County Prosecuting Attorney Morley Swingle has written that the state anticipates filing a murder charge against Clay Waller in connection to her disappearance.

In a form that consisted of only the case's most pertinent information -- namely the conviction and sentence -- Tilsen indicated that he is appealing the sentence and the departure from the sentencing guidelines.

During the hearing, Brenneke took the stand and delivered more than an hour of emotional testimony about her sister.

Ferrell had Brenneke testify in an effort to move the sentencing guidelines up two levels on the basis of Clay Waller targeting a vulnerable victim. Federal guidelines dictate that a victim is vulnerable when their age or physical or mental condition makes them susceptible to the criminal conduct. Brenneke's anguish over her missing sister made her susceptible to the threat, Limbaugh ruled.

As a result of Brenneke's testimony, Limbaugh raised the offense level from 10 to 12, which heightened the sentencing guidelines from six to 12 months to 10 to 16 months.

Tilsen said at the hearing that his client was unaware of Brenneke's vulnerability and added that the government is trying punish Waller 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.

Tilsen declined to comment Wednesday but said Tuesday after the hearing that he planned to appeal the sentence even before it was imposed.

The next step is for Tilsen to file a brief outlining why the case is being appealed and for Ferrell to file a brief why the sentence should not change, according to the U.S. federal court's website. From there, a panel of three judges will decide whether the sentence will be overturned.

psullivan@semissourian.com

388-3635

Pertinent address:

499 Independence St., Cape Girardeau, MO