The federal government miscalculated sentencing guidelines, erroneously alleged Clay Waller killed his wife and used that alleged murder to give him a maximum sentence on Internet threatening charges, Waller's attorney wrote in an appeal that became available to the public Monday.

Judge Stephen N. Limbaugh sentenced Waller to five years in federal prison Jan. 3 after Waller confessed 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.

Clay 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 until Monday afternoon.

In the 39-page appeal, Tilsen writes that the government incorrectly classified Brenneke as a vulnerable victim by citing her struggles after her sister went missing. Brenneke's weight and stress levels fluctuated because of Jacque Waller's disappearance, she testified at Clay Waller's sentencing hearing.

Federal guidelines dictate that a victim is vulnerable when their age, 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. Because of the ruling, Limbaugh was free to range from the sentencing guidelines, which had originally dictated that Clay Waller get no more than 12 months in prison.

Waller is currently serving his sentence at correctional facility in Oakdale, La.

Brenneke's despair over her sister's disappearance was unbeknown to Clay Waller, Tilsen wrote in the appeal.

"Mrs. Brennecke (sic) was not physically or mentally disabled in any sense known to Mr. Waller or otherwise vulnerable in the sense used by the guidelines," Tilsen wrote. "Her circumstances, particularly the fact that she was the custodian of Mr. Waller's children, made her the victim of the threat. That was the impetus for the crime, but it does not make her an unusually vulnerable victim for purposes of the sentencing guidelines."

Tilsen cited several court cases -- two that helped establish the vulnerable victim criteria and two where rulings were reversed -- as precedent in appealing Waller's sentence.

The appeal also takes aim at Limbaugh's assertion that Waller had murdered his wife. During the sentencing hearing, Limbaugh said that based on preponderance of evidence, Clay Waller was guilty of murdering Jacque Waller.

Preponderance of evidence is the burden of proof in civil cases and allows a jury or judge to rule whether the proposition is more likely to be true than untrue.

Limbaugh's assertion is largely based on Brenneke's testimony, Waller's 1993 misdemeanor assault charge and an alleged confession Waller made to his father, Tilsen wrote.

Waller was convicted of assault in 1993 after he backed his truck into his estranged girlfriend's car. He was given a suspended sentence.

Shortly after Jacque Waller went missing, Clay Waller allegedly told his father, James Clay Waller, he had snapped her neck and buried her. Cape Girardeau County Prosecuting Attorney Morley Swingle unsuccessfully attempted to preserve the elder Waller's testimony in November. Waller's father had been bedridden and close to death when Swingle tried to preserve his testimony. He died almost a month after the hearing that ruled against Swingle.

Tilsen discounts the confession in the appeal, writing that the elder Waller was "irrational" when he told federal authorities his son had confessed to the murder. Clay Waller's almost nonexistent relationship with his father also devalues the alleged confession, Tilsen wrote.

"It is improbable that Mr. Waller confessed to a father with whom he was not close and who had abandoned the family when he was a child," Tilsen wrote.

Limbaugh's assertion "inextricably intertwines" the alleged murder into Waller's federal Internet threatening case and helped Limbaugh incorrectly vary from the sentencing guidelines, according to the appeal.

"If Appellant Waller committed an offense in connection with his wife's disappearance, his punishment for that would lie with the courts in the state of Missouri," Tilsen wrote. "Even if the alleged murder were true and proven and properly used as a factor in imposing a sentence for his Federal offense, the statutory maximum is an unreasonable sentence in light of the nature and circumstances of the offense and Mr. Waller's history and characteristics."

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.

psullivan@semissourian.com

388-3635

Pertinent address:

499 Independence St., Cape Girardeau, MO

Oakdale, LA