By PATRICK T. SULLIVAN
SEMO News Service
CAPE GIRARDEAU, Mo. - 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 pled 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 guideline's 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.
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.
In the memo, Tilsen wrote that while the threat was illegal, it does not warrant more time in prison for Clay Waller.
"The pre-sentencing 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.
Waller will be sentenced Dec. 19.