United States v. James Waller ( 2012 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 12-1036
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
James Clay Waller
lllllllllllllllllllll Defendant - Appellant
____________
Appeal from United States District Court
for the Eastern District of Missouri - Cape Girardeau
____________
Submitted: June 15, 2012
Filed: August 24, 2012
[Published]
____________
Before SMITH, BEAM, and SHEPHERD, Circuit Judges.
____________
PER CURIAM.
James Clay Waller pleaded guilty to one count of knowingly transmitting in
interstate commerce, via the Internet, a communication containing a threat to injure
the person of another, in violation of 18 U.S.C. § 875(c). The district court1 sentenced
Waller to 60 months' imprisonment, applying a vulnerable victim enhancement under
U.S.S.G. § 3A1.1(b)(1) and varying upwards under 18 U.S.C. § 3533(a) after
considering Waller's culpability in the alleged murder2 of his wife. On appeal, Waller
challenges his sentence. For the reasons that follow, we affirm.
I. Background
On July 26, 2011, Cheryl Brenneke contacted the Cape Girardeau County,
Missouri Sheriff's Department concerning a threat to kill her. The threat appeared as
a post on a website dedicated to following developments in the June 1, 2011
disappearance of her younger sister and Waller's estranged wife, Jacque Waller
("Jacque"). The threat was found under a discussion entitled, "Police Search for
Missing Jackson Woman," post number "4164." The post stated: "You are dead I
promise If those kids get hurt, your fault, accident, nobodys fault. Your dad threaten
clay, I know he's all talk, I will get you 5, 10, 25 years from now. You have it
coming." The threat made Brenneke fear for her life and caused her to take
precautions to protect herself, her family, and Jacque's three children.3 Brenneke
believed at the time that Waller had murdered her sister and was now threatening to
kill her.
1
The Honorable Stephen N. Limbaugh, Jr., United States District Judge for the
Eastern District of Missouri.
2
We take judicial notice of the fact that following sentencing in this case,
Missouri charged Waller with the murder of his wife Jacque. See Crimesider Staff,
Jacque Waller Case: Hearing set for Clay Waller in missing wife's death, CBS News
(July 23, 2012, 5:03 PM), http://www.cbsnews.com/2102-504083_162-574
78181.html?tag=contentMain;contentBody.
3
The Missouri Children's Division temporarily placed the Wallers' five-year-old
triplets in Brenneke's custody following Jacque's disappearance.
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Federal authorities learned that the threat originated from a computer located
at Plaza Pawn, a pawn shop, in Cape Girardeau, Missouri. Authorities executed a
federal search warrant and seized the computer. Surveillance cameras in Plaza Pawn
verified that Waller was the sole operator of the computer at the time that the threat
was posted.
An indictment charged Waller with knowingly transmitting in interstate
commerce, via the Internet, a communication containing a threat to injure the person
of another, in violation of 18 U.S.C. § 875(c). Waller pleaded guilty to the one-count
indictment, and a presentence report (PSR) followed.
The PSR recommended a base-offense level of 12 and a two-level reduction
for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1, resulting in a total
offense level of ten. With a criminal history category of I, the PSR calculated a
Guidelines-range sentence for Waller of 6 to 12 months' imprisonment. The
government objected to the PSR. First, the government argued that two levels should
be added to Waller's base-offense level under U.S.S.G. § 3A1.1(b)(1) because Waller
knew or should have known that the victim of the offense was a vulnerable victim.
Second, the government sought upward departures under U.S.S.G. § 4A1.3(a) and
§ 5K2.0 because (a) Waller's "criminal[-]history category substantially
underrepresent[ed] the seriousness of [his] criminal history or the likelihood that [he
would] commit other crimes," and (b) "there exist[ed] aggravating circumstances, of
a kind, or to a degree, not adequately taken into consideration by the Sentencing
Commission in formulating the Guidelines, that, in order to advance the objectives
set forth in 18 U.S.C. § 3553(a)(2), should result in a sentence different from that
described." Finally, the government argued that, under the factors specified in
§ 3553(e), an upward variance was also justified.
At sentencing, the government offered Exhibit A, a 23-page sworn affidavit of
FBI Special Agent Brian W. Ritter. Special Agent Ritter investigated Waller's threat
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to Brenneke and also served as a lead investigator into the June 1, 2011 disappearance
of Jacque. The affidavit detailed evidence collected in the instant offense, evidence
collected in Jacque's disappearance, and evidence of Waller's prior misdeeds. Twenty-
four exhibits accompanied Special Agent Ritter's affidavit, which included sworn
statements to law enforcement authorities, official police reports, and official court
documents supporting the content of Special Agent Ritter's affidavit. The government
provided the affidavit and exhibits to Waller's counsel in advance of the sentencing
hearing. Waller did not object to the government's introduction, and the court's
consideration, of the affidavit or the exhibits.
The government called Brenneke to testify. Brenneke testified that the state
court had placed Jacque's and Waller's three minor children into her and her husband's
care. The state court had denied Waller visitation with the children. According to
Brenneke, Jacque married Waller in 1993. Brenneke and Jacque became "extremely
close" in 2004.
Brenneke further testified that in June 2010, Jacque told Brenneke that Jacque
was contemplating leaving Waller. But Jacque said "that she was afraid that Clay
Waller would kill her if she left." Jacque told Brenneke
that Clay told her that he was unhappy and that he wanted—and he was
thinking about a divorce, and she said, Oh, you're unhappy. That works
out really well, because I've been thinking the same thing.
And . . . then all of a sudden he was kidding. And he got irate and
. . . drug [Jacque] into the house by the hair of the head. The kids
witnessed this. He threw her against a wall and knocked some pictures
off. . . .
***
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And he had went outside to get a gun or something, or [Jacque] thought
he was leaving. She locked the door. And he kicked the door in. And
[Jacque] told [Brenneke] that [Waller] said that divorcing him would be
a death sentence.
According to Brenneke, Jacque was "very upset about it."
Brenneke testified that from July 2010 to March 2011, Jacque "continue[d] to
confide in [her] that [Waller] was continuing to threaten her." Brenneke encouraged
Jacque to leave Waller, telling Jacque that Waller was "all talk." But Jacque indicated
to Brenneke that she believed the threats "to be very serious."
In March 2011, Jacque separated from Waller, and Jacque and the children
moved in with Brenneke and her husband. While Jacque was at work, Brenneke and
her family cared for the children. Jacque continued to confide in Brenneke that Waller
"was continuing to threaten her life," a topic they discussed daily. According to
Brenneke, Jacque "was scared to death." On one occasion, Waller told Jacque, "You
think you're safe up there at your sister's. Well, you're not. I'll just wait for you to
have to go to town and get you going to the grocery store." Jacque was afraid. "[S]he
would not sit on the couch without the curtains being closed for fear he would snipe
her from the woods . . . ." Waller told Jacque that "if he could not have her nobody
would." He said that "[n]obody else was going to raise his kids." Waller told Jacque
that "[i]t would be a death sentence to divorce him."
Brenneke "begged [Jacque] to go to the police," but Jacque insisted that going
to the police would "just make it worse." Jacque told Brenneke that she was
"documenting everything at work."
Brenneke testified that, prior to her disappearance on June 1, 2001, Jacque
began dating another man, and the two were planning to move in together. Three days
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before Jacque disappeared, Jacque told Brenneke that she had informed Waller about
her new relationship. Jacque told Brenneke, "I just can't do it anymore. If he's going
to kill me, he's going to kill me. I can't live like that anymore. That's not living."
On June 1, 2011, Jacque left to attend a meeting at a lawyer's office in Cape
Girardeau where she and Waller were to sign divorce papers. Jacque told Brenneke
that she would pick up her son, who had been visiting with his father, on the way
home from the meeting. At 3:50 p.m. that afternoon, Jacque called Brenneke and told
her that she just got out of the lawyer's office, and said that "[a]ll [she had] to do
[was] run by and grab [her son] from [Waller's] house, and [would] be straight home."
Brenneke expected Jacque to be home around 5:30 p.m. When she did not arrive as
expected, Brenneke began calling and texting her. Jacque did not respond. Jacque's
boyfriend was also unable to contact Jacque. Brenneke called her parents and told
them "they had a problem." Unable to reach Jacque, Brenneke then called and texted
Waller. After unsuccessfully trying to call and text him on several occasions, she left
a message on Waller's phone, stating that if she did not hear from him within ten
minutes, she would call the police. Waller immediately called her back and stated that
the last time he had seen Jacque was at the lawyer's office. He told Brenneke that he
had talked Jacque into letting him keep their son a few more days, which Brenneke
did not believe. Brenneke frantically went downstairs and told her husband that "[h]e
has killed her. I know he's killed her." Brenneke stated that there was never a doubt
in her mind from that moment on June 1, 2011, that "[Waller] murdered my sister."
Brenneke reported Jacque as a missing person to the Jackson, Missouri Police
Department. Brenneke also reported that Jacque had told her that Waller had
threatened to kill her and their three children before and that she was worried.
Investigators soon verified that on June 1, 2011, at approximately 3:00 p.m.,
Jacque met with Waller at their divorce lawyer's office. After the meeting, Jacque
telephoned her boyfriend and told him that she was on her way to Waller's house in
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Jackson, Missouri, to pick up her son. That telephone conversation lasted until she
arrived at Waller's residence, ending at 4:05 p.m. No one except Waller has seen or
heard from Jacque since her arrival at Waller's residence.
A diary on Jacque's work computer contained summaries of some of the threats
Waller made to Jacque. The diary entries contained the following threats:
• On Friday, December 3rd, I took the kids and went to my sister's
house. Clay called me and I told him that I was going to file for
divorce. He told me that he wanted [our son] and he was going to
move with him to California. He said that was the only way he
could ensure my safety. He said that he cannot live near me
knowing that another man may be with me. He made numerous
threats during this conversation. He asked me if I had someone
lined out to raise our kids. He also said that he had a feeling that
one of us would not be around to watch our kids grow up.
• On Saturday, December 4th, Clay threatened me again. He asked
me why I didn't just take his gun out of my car, put it in my mouth
and end myself so he could raise the kids.
• Wednesday, February 16th: Clay told me that he thought many
times over the summer about killing himself and our kids so that
I could start my new life. He also said that he is afraid that we
won't see our kids grow up. He stated that he is starting to hate me
and he will get me. Someday there might be a knock at the door
and I open the door and get blown away.
***
• Friday, March 18th: Clay told me that I didn't deserve to live and
he wishes he had a gun so he could blow my head off that day. He
told me that a divorce would be my death sentence.
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• Wednesday, March 23rd: Clay called me at 7 AM. He was
threatening me and yelling at me. I met him at the airport. He told
me that divorcing him was a death sentence. He would get me
and, if he couldn't get to me, he would kill our kids. He would
take them for a weekend fishing trip and then he would personally
tell me they drowned so he could see my face. . . .
• June 2010: Clay was angry and told me never to keep his kids
from him. He ran through the garage saying he was going to get
his gun out of his truck. I stopped him before he got it. The kids
came out to the garage and they went over to him and tried to
comfort him.
• July 2010: In a rage, Clay started packing his bags. As he walked
out, he hit my head against the wall and knocked pictures off. I
thought he was done packing so I locked the door. He then kicked
the door in and told me he was going to get his gun so I could
blow my head off. The kids and I all ran outside. He got his gun
out of his truck and tried to drag me by the hair into the house. I
got away from him and was getting ready to run to a neighbor's
house. He took the bullets out of the gun and then threw it to me.
We then went inside and talked. I still have the gun.
• July 17, 2010: Clay took the kids camping. Before they left, he
had me take a picture. He later told me that he had me take that
picture because he planned to kill them that weekend because he
knows that would be the way to hurt me the most.
• October 27, 2010: Clay asked me if we were going to get back
together or not. I told him I still had trust issues. He stated that we
could get divorced and he could get along with me but he will not
stand for another man in his kids' lives. I told him that would not
be a problem. He then told me that if I thought in a couple years
that I could get a man and think everything would be find [sic], I
am wrong. He said he would kill me, the kids and himself. I said,
"So you are saying is that you would kill us all and he said, yes."
-8-
Special Agent Ritter investigated Jacque's disappearance and averred that, on
June 2, 2011, at approximately 12:30 a.m., Waller called the Jackson Police
Department to make a missing person report on his wife. According to Special Agent
Ritter Waller told authorities that he and Jacque met at their attorney's office and that
Jacque was supposed to bring a key to their post-office box to him at his residence.
Waller admitted that Jacque later arrived at his residence, but he could not recall the
time. Waller claimed that they sat and talked for a while and then napped. Waller
reported that after the nap, they started to argue, and Jacque left the residence on foot.
Waller stated that he then left the residence, and when he returned, her car was gone.
Special Agent Ritter further averred that, on June 2, 2011, at approximately
10:00 a.m., Jacque's vehicle was located on Interstate 55 northbound near the 105-
mile marker in Jackson, Missouri. The vehicle was on the shoulder of the interstate
with a flat tire.
That day, authorities executed a search warrant at Waller's residence. During
the search, officers saw a hallway where children's play mats and toys had been
placed on and along the carpet. The officers did not examine the floor under the mats
at that time. But on June 6, 2011, Special Agent Ritter participated in a second search
of Waller's residence, after the home owner4 reported that carpet was missing from
the residence. In re-examining the residence, Special Agent Ritter located and
collected blood spatter evidence from two walls.5 At a later time, Special Agent Ritter
located and collected several pieces of carpet and carpet pad from a crawl space
accessible in the basement of the residence. The carpet pieces and carpet pad were
hidden from the back of the crawl space. One piece of carpet had a large blood stain
on the bottom of the carpet and was hidden separately from the others in the crawl
4
Waller did not own the home where he lived at the time.
5
Blood spatter occurs when blood moves from one object through the air and
lands on another object.
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space. Tests confirmed that the blood located on the two walls and the blood on the
piece of carpet contained Jacque's DNA.
Special Agent Ritter averred that, on July 11, 2011, he interviewed Waller.
During the interview, Waller denied that Jacque came to his house to pick up their
son and claimed that she came to the house for personal reasons and to talk about the
bankruptcy. Waller said that his son was with his girlfriend at the time Jacque came
by and was not at his house during her visit. Agent Ritter asked Waller if Jacque had
ever been injured in the house. Waller paused and then said "yes," but he did not want
to talk about it and said that "it was not a big deal." Waller later said that Jacque had
an accident in the kitchen that made her face bleed. He stated that "she started
bleeding like . . . a lot." Waller claimed that Jacque used her hands to catch the blood
and ran through the house toward the bathroom. Waller claimed that he and Jacque
cleaned up the blood together, and he never told the police about the blood because
"it was no big deal." Waller then admitted that he cut up and removed the carpet with
the blood on it and hid it in the crawl space. He said that he removed the carpet after
the police conducted the first search warrant at the residence because he did not want
the homeowner to find it and think that something wrong had happened. Waller
claimed that when Jacque left the house, she was mad at him because he would not
give her car keys to her, so he threw the keys up in the air, and they got stuck in a
tree. Waller claimed he last saw Jacque walking away on foot.
Special Agent Ritter averred that, during the investigation, he interviewed
Waller's father, James Clay Waller, Sr., who told authorities that Waller came to him
a few days after Jacque went missing and confessed that he had killed her. Agent
Ritter averred that "Waller told his father that the hole was already dug and he buried
her with a shovel." While telling his father how he killed Jacque, Waller made a
motion with his arms consistent with breaking her neck. Waller's father said his son
was crying and emotional when he confessed to killing and burying Jacque. Waller's
father told his son to turn himself in to the authorities or seek psychiatric treatment.
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Brenneke stated that before she received the threat from Waller on July 26,
2011, there was no doubt in her mind that Waller had carried out his threat to kill
Jacque. At that time, Brenneke was "totally devastated physically, emotionally,
mentally, [and] psychologically." According to Brenneke, "looking for [her] sister
. . . t[ook] a physical toll on [her]." She had "nightmares on what [Waller] might have
done to [Jacque]," which "continue to this day."
Brenneke testified that, during this period of time, she thought about the loss
of her sister "[c]onstantly" because she has "three reminders looking at [her] 24 hours
a day." Brenneke was confident that Waller murdered her sister, but she did not know
how he did it or where to find her sister. Brenneke envisioned "terrible things that
might have happened to [Jacque.]" This affected Brenneke's "ability mentally to
concentrate." She found routine things like paying bills difficult. Brenneke described
for the court what her life was like and the effect the loss of her sister had on her
before she received the threat, stating:
Jacque wasn't just my sister. She was my best friend. And I've been
devastated mentally, physically. I still haven't got to grieve, because I
am consumed with keeping it all together for the children, keeping—I'm
the oldest, you know, and to take care of my mom and dad. They're
going through hell.
Brenneke testified that because Waller, in her mind, had killed her sister, as he
had threatened to do, and on July 26, 2011, she was "greatly more vulnerable to a
threat upon [her] life by Clay Waller than [she] would normally have been" because
she "believe[d] he would be capable of doing anything at that point."
Brenneke testified that she learned about the threat from friends who called and
expressed concern for her safety. She, too, was genuinely concerned. She considered
the threat to be real, unrelated to the children's welfare, and immediately active. She
noted the threat began with the words: "You are dead." She also knew that no one
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believed that she would hurt her sister's children. Brenneke recalled that Waller had
told Jacque that no one else would raise his kids. As the children's custodian,
Brenneke felt that her life was threatened.
When she first saw the threat, she took immediate action. She "grabbed the
kids," went to a friend's house, and waited for her husband to come home and make
sure everything was secure. Brenneke, her husband, and other members of the family
armed themselves. Brenneke and her husband kept the doors locked, updated the
security system in their home, and kept the alarms set. They were on constant watch
until Waller was arrested. If Waller is released from jail, Brenneke stated that they
will "go back to lockdown mode." She stated that the effects of this threat will never
leave her.
At the sentencing hearing, the government introduced additional evidence of
Waller making threats and acting violently and deceitfully. On June 2, 1993, in a
sworn statement given to police, 21-year-old former girlfriend and mother of Waller's
child reported that Waller threatened her. She also reported that Waller told her that
"if he can't have me, no one will." On June 15, 1993, the state court entered a Full
Order of Protection, finding that Waller's former girlfriend had proven the allegations
of abuse by a preponderance of the evidence. Waller was later convicted of assaulting
his former girlfriend and received a 30-day suspended sentence. Waller's former
girlfriend filed additional sworn statements alleging that, on three separate occasions
between June 14 and June 21, 1993, Waller violated the Ex Parte Order of Protection.
Waller was charged with three counts of violating an Ex Parte Order with regard to
these incidents, but they were dismissed as part of a plea agreement.
On July 27, 2011, one day after threatening Brenneke's life, another one of
Waller's former girlfriends filed a sworn complaint with the Cape Girardeau, Missouri
Police Department, alleging that Waller told her in a telephone call that he was going
to kill her husband. On July 29, 2011, the Cape Girardeau County Prosecuting
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Attorney charged Waller with harassment, a class A misdemeanor, for threatening to
kill his former girlfriend's husband. On July 27, 2011, an Adult Abuse Ex Parte Order
of Protection was ordered based on a finding that there was an immediate and present
danger of abuse by Waller.6
At the conclusion of this evidence, Waller's counsel argued against the
vulnerable-victim enhancement. According to Waller's counsel, Brenneke did not
meet the definition of a vulnerable victim. Specifically, he argued that the
enhancement is only appropriate if the defendant knew or should have known that the
victim of the offense was unusually vulnerable due to age or handicap. Counsel
argued that, Brenneke's alleged vulnerability was not of the type described by the
enhancement and that Waller had no knowledge of Brenneke's alleged vulnerability.
The district court "disagree[d] a little bit with [Waller's counsel's]
characterization of [Brenneke's] vulnerability." The court found that Brenneke fit the
criteria of being "otherwise particularly susceptible to criminal conduct . . . due to her
close relationship with her sister[,] and her belief that [Waller] was capable of
carrying out [the] threat that was made and for all of the other reasons that the
Government ha[d] presented." The district court applied the two-level enhancement
under U.S.S.G. §3A1.1(b)(1), which resulted in a Guidelines range of 10 to 16
months' imprisonment.
The government then argued in favor of a 60-month sentence under U.S.S.G.
§ 5K2.0 or as "a variance in light of the sentencing factors under 18 U.S.C.
[§] 3553(a)." After hearing arguments from both parties and a statement from Waller,
the court imposed Waller's sentence, explaining:
6
At the time of the sentencing, Waller had also been charged in Cape Girardeau
County with felony stealing by deceit. The charge was still pending.
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Mr. Waller, I disagree with your lawyer's position that the fact
that you've not been charged with a crime or convicted makes this a
matter about the death of Jacque Waller off limits somehow on this
sentencing hearing. That's not the law.
And [under] the sentencing guideline factors I'm not only entitled,
but I'm required to look into the history and characteristics of the
Defendant—that's you—in every respect possible, and that includes
under the law even offenses that have not been charged or convicted if
there's proof necessary to sustain those convictions.
The Court finds by a preponderance of the evidence that you did
murder Jacque Waller. Now, let me be clear about that, I'm not
suggesting in any way that I'm making that finding by a standard of
proof beyond a reasonable doubt, that I am not making that finding by
a standard of proof beyond a reasonable doubt. For purposes of this
hearing I'm only required to make findings based on a preponderance of
the evidence, and so that is my finding.
Your lawyer has also indicated that the murder of Jacque Waller
and this particular threat are not so connected that they should be
considered or that the murder should be considered in your sentencing,
but I disagree with that too. Given the context of this case and having
reviewed all the exhibits that the Government has submitted, particularly
the affidavit from Mr. Ritter, the FBI agent, which encapsulates all the
evidence, and hearing all the evidence here today and the other threats
as well it's apparent to the Court that the murder and the threat in this
case were inextricably intertwined.
For those reasons the Court is of the opinion that an upward
variance is warranted.
I want you to know too that I'm considering all of the factors that
I'm required to consider under Title 18, United States Code Section
3553(a). I mention that murder involves the provision about the history
and characteristics of the Defendant.
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There's another one that I want to respond to address specifically,
and that's the guideline that 2(c). That's to protect the public from further
crimes of the Defendant. Having read all the exhibits that were
submitted by the Government, the Court is very concerned about
protecting the public from the Defendant and in particular the specific
victim of this crime and also in particular the children involved
themselves.
As I say, I'm considering all of the various sentencing guidelines
as well as the ones that I specifically mentioned. Therefore, pursuant to
the Sentencing Reform Act of 1984 and the provisions of Title 18,
United States [C]ode, Section 3553(a) and all of the factors thereunder.
And also in view of the sentencing guidelines or the sentencing
objectives of just punishment, general deterrence and incapacitation it's
the judgment of the Court that you James Clay Waller is hereby
committed to the Bureau of Prisons to be imprisoned for a term of 60
months. That's the maximum under the statute, as you know.
The court sentenced waller to 60 months' imprisonment. The government then
inquired as to whether the court would have varied the sentence imposed even if it
had concluded that the witness was not a vulnerable victim and the Guidelines range
was 6 to 12 months. The court responded that it would have imposed "the full 60-
month term."
II. Discussion
On appeal, Waller argues that the district court erred by (1) applying the
vulnerable victim enhancement under U.S.S.G. § 3A1.1(b)(1), (2) finding that Waller
murdered his wife and that the murder was inextricably intertwined with his
threatening communication to Brenneke, (3) using the uncharged murder as a basis
for an upward variance, and (4) imposing a substantively unreasonable sentence.
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A. Vulnerable-Victim Enhancement
Waller first argues that the district court procedurally erred in applying the
vulnerable-victim enhancement under § 3A1.1(b)(1). Specifically, he argues that the
enhancement does not apply because Brenneke was not physically or mentally
disabled in any sense known to Waller or otherwise vulnerable in the sense used by
the Guidelines. In response, the government argues that the district court did not err
in imposing the two-level enhancement and that, even if it did, such error was
harmless because the district court stated on the record that it would have imposed
the same 60-month sentence regardless of whether the two-level enhancement
applied.
"We review de novo whether the district court correctly interpreted and applied
the sentencing [G]uidelines, while the court's factual findings are reviewed for clear
error." United States v. Koch, 625 F.3d 470, 480 (8th Cir. 2010).
When reviewing a district court's imposition of a sentence, we "must first
ensure that the district court committed no significant procedural error." Gall v.
United States, 552 U.S. 38, 51 (2007). "Procedural error includes failing to calculate
(or improperly calculating) the Guidelines range, treating the Guidelines as
mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on
clearly erroneous facts, or failing to adequately explain the chosen
sentence—including an explanation for any deviation from the Guidelines range."
United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc) (quotations
and citation omitted). "A failure to properly calculate the advisory Guidelines range
is a significant procedural error, and a non-harmless error in calculating the
[G]uidelines range requires a remand for resentencing." United States v. Woods, 670
F.3d 883, 886 (8th Cir. 2012) (quotation and citation omitted). "However, a district
court's Guidelines computation error is harmless if the government can show the
procedural error did not substantially influence the outcome of the sentencing
proceeding." Id. (quotation and citation omitted).
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Under these facts, we need not determine whether the district court
procedurally erred in applying the vulnerable-victim enhancement under
§ 3A1.1(b)(1) because any such error would be harmless. Assuming that procedural
error occurred, "[t]he record indicates that the district court intended to sentence
[Waller] to [60] months." Id.; see also United States v. Goodyke, 639 F.3d 869, 875
(8th Cir. 2011) ("That the district court wanted to get to a seventy-five-month
sentence is fairly obvious from the transcript."); United States v. Sanchez–Martinez,
633 F.3d 658, 660–61 (8th Cir. 2011) (concluding any error was harmless because the
record clearly indicated the district court would have imposed the same sentence
regardless of the error). The district court specifically stated that "[r]egardless of the
sentencing guidelines whether they were 6 to 12 months or 10 to 16 months it's the
Court's intention for all the reasons previously stated that I was going to impose the
full 60-month term."
B. Murder Finding
Waller next argues that the district court erred in finding by a preponderance
of the evidence that he "murdered" his missing wife and that the alleged murder is
"inextricably intertwined" with his threats to Brenneke. According to Waller,
although the rules of evidence and the right of confrontation do not apply at
sentencing, because the sentence enhancement increased the sentence from a range
of 6 to 12 months to the statutory maximum of 60 months, "due process may well
have required more than the limitless acceptance of hearsay and speculation."
After the district found by a preponderance of the evidence that Waller
murdered his wife and that the murder was inextricably intertwined to the threat
Waller made to Brenneke, Waller did not object. Because "[Waller] failed to raise any
objection to th[is] alleged procedural error before the district court . . . our review is
for plain error." United States v. Mireles, 617 F.3d 1009, 1012 (8th Cir. 2010).
"Under plain error review, the defendant must show: (1) an error; (2) that is plain; and
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(3) that affects substantial rights." Id. (quotation and citations omitted). "A plain error
will not be corrected unless (4) it seriously affects the fairness, integrity, or public
reputation of judicial proceedings." Id. at 1013 (quotation and citation omitted). "A
sentencing error is prejudicial if there is a reasonable probability the defendant would
have received a lighter sentence but for the error." Id. (quotation and citation
omitted).
We have rejected the assertion that "due process require[s] the government to
prove by clear and convincing evidence facts that produce[] so substantial an increase
in [a defendant's] [G]uidelines range." United States v. Villareal-Amarillas, 562 F.3d
892, 895 (8th Cir. 2009). This court has explained:
Under the prior mandatory Guidelines regime, we repeatedly held
"that the facts relied upon by the district court at sentencing need be
proved only by a preponderance of the evidence." United States v. Wise,
976 F.2d 393, 400 (8th Cir. 1992) (en banc); United States v. Gooden,
892 F.2d 725, 727–28 (8th Cir. 1989), cert. denied, 496 U.S. 908, 110
S. Ct. 2594, 110 L. Ed. 2d 274 (1990). However, for many years, we
have recognized, but never applied, an exception to this general
standard—due process requires that sentencing determinations "that
have an 'extremely disproportionate' effect on a defendant's sentence" be
proved by clear and convincing evidence. United States v. Garth, 540
F.3d 766, 773 (8th Cir. 2008). As we will explain, this principle derives
from a misreading of the Supreme Court's decision in McMillan v.
Pennsylvania, 477 U.S. 79, 106 S. Ct. 2411, 91 L. Ed. 2d 67 (1986). We
now join three other circuits in concluding that, even if valid when the
Guidelines were mandatory, this principle did not survive the Supreme
Court's recent decisions in United States v. Booker, 543 U.S. 220, 125
S. Ct. 738, 160 L. Ed. 2d 621 (2005), and Gall v. United States, 552 U.S.
38, 128 S. Ct. 586, 169 L. Ed. 2d 445 (2007).
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Id. Because due process is not implicated, this court must only determine whether the
district court clearly erred in finding that Waller murdered his wife and that the
murder was inextricably intertwined with the underlying offense.
Where there are two permissible views of the evidence, the factfinder's
choice between them cannot be clearly erroneous. If the district court's
fact-findings are plausible in light of the record viewed in its entirety,
they must be affirmed, regardless of how this court might have weighed
the evidence in the first instance. When a factual finding is supported by
substantial evidence, it is not clearly erroneous.
F.T.C. v. Lundbeck, Inc., 650 F.3d 1236, 1239 (8th Cir. 2011) (quotation and citation
omitted).
The evidence that the government presented to the district court at the
sentencing hearing makes the district court's factual findings "plausible" by a
preponderance of the evidence. First, Waller repeatedly threatened to kill his wife.
Second, Jacque vanished four days after telling Waller that she was in a relationship
with another man, and shortly after she met with Waller to sign divorce papers at an
attorney's office. Third, Waller was the last person to see Jacque alive. Fourth, shortly
after Jacque went into Waller's residence, Waller did not answer Brenneke's phone
calls, but he responded when she left him a message saying that if she did not receive
a response within ten minutes, she was going to call the police. Fifth, Waller initially
lied to Brenneke by denying that Jacque had been at his residence; later, Waller told
police that Jacque had been "napping" at his residence, that he had thrown her keys
into a tree, and that Jacque had left on foot. Sixth, in his first interview with
authorities, Waller did not mention Jacque being injured at his residence. Seventh,
authorities found spatters of Jacque's blood on the walls at Waller's residence. Eighth,
authorities found pieces of carpet hidden in the crawl space of Waller's basement with
Jacque's blood on them. Ninth, Agent Ritter averred that Waller admitted cutting up
the carpet and hiding it, giving the explanation that he did it because he did not want
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his landlord to find out and "think that something happened." Tenth, Waller's father
stated that Waller admitted that he killed Jacque and that he had buried her, having
already dug the hole ahead of time.
It is also plausible that "the murder and the threat in this case were inextricably
intertwined," as the district court found. The recipient of the threat—Brenneke—is
the sister of Waller's "missing" wife. Waller posted the threat to Brenneke on a
website dedicated to following developments in the disappearance of his wife. At the
time that Waller made the threat, Brenneke had custody of Waller's three children
with Jacque. Brenneke testified that the threat put her in fear for her life and caused
her to take immediate precautions to protect herself, her family, and Jacque's three
children. According to Brenneke, at the time of the threat, she believed that Waller
had murdered her sister and was now threatening to kill her.
Under these facts, the district court did not err in finding by a preponderance
of the evidence that Waller murdered his missing wife and that the alleged murder is
inextricably intertwined with the threatening communication to Brenneke.
C. Consideration of Murder Finding in Upward Variance
Waller next asserts that the district court erred in considering that he murdered
Jacque when imposing the upward variance. According to Waller, "[o]ther crimes
charged, convicted, or proven are not double counted as a separate component of
'character' or the 'history and characteristics' of the defendant." Waller maintains that
his alleged murder of his wife was not related to his threat to kill Brenneke and
cannot be considered.
At sentencing, Waller's counsel did not argue that the district court could not
rely on unrelated and uncharged criminal conduct as a basis for an upward variance,
nor did Waller's counsel raise any further procedural objections to the sentence when
specifically asked by the court whether there was "anything further from the
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Defendant" prior to the conclusion of the hearing. Because Waller did not object to
the district court's imposition of an upward variance at sentencing, we review the
district court's decision for plain error. See United States v. Alexander, 517 F.3d 887,
889 (6th Cir. 2008) ("Because Alexander did not object to the upward variance when
asked at the sentencing hearing, we review his sentence for plain error.").
Here, the district court found by a preponderance of the evidence that Waller
murdered his wife. This act constitutes
criminal misconduct. Like other prior criminal conduct, whether or not
related to the offense of conviction, it is part of 'the history and
characteristics of the defendant' that the district court 'shall consider' in
imposing an appropriate sentence, 18 U.S.C. § 3553(a)(1), and it may be
relevant in a particular case to the factors enumerated in § 3553(a)(2).
United States v. Loaiza-Sanchez, 622 F.3d 939, 942 (8th Cir. 2010) (citing United
States v. Jenners, 537 F.3d 832, 835–36 (8th Cir. 2008) (noting that a court may
consider uncharged criminal conduct)); United States v. Comer, 93 F.3d 1271, 1284
(6th Cir. 1996) (holding that a sentencing court may consider acquitted conduct or
uncharged criminal conduct); United States v. Aideyan, 11 F.3d 74, 76 (6th Cir.1993)
("A sentencing court may consider prior criminal conduct, whether or not
charged . . . ."). Thus, we conclude that the district court did not err, plainly or
otherwise, in varying upward based on its finding that Waller murdered his wife.
D. Substantive Reasonableness of Waller's Sentence
Finally, Waller argues that his sentence is substantively unreasonable.
In the absence of procedural error below, we . . . consider the
substantive reasonableness of the sentence imposed under an
abuse-of-discretion standard. In conducting this review, we are to take
into account the totality of the circumstances, including the extent of any
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variance from the Guidelines range. If the defendant's sentence is within
the Guidelines range, then we may, but [are] not required to, apply a
presumption of reasonableness. But we are not permitted to apply a
presumption of unreasonableness if the sentence is outside the
Guidelines range. Instead, we may consider the extent of the deviation,
but must give due deference to the district court's decision that the
§ 3553(a) factors, on a whole, justify the extent of the variance. We may
not require "extraordinary" circumstances to justify a sentence outside
the Guidelines" and are prohibited from the use of a rigid mathematical
formula that uses the percentage of a departure as the standard for
determining the strength of the justifications required for a specific
sentence. Just because we might reasonably have concluded that a
different sentence was appropriate is insufficient to justify reversal of
the district court.
Feemster, 572 F.3d at 461–62 (quotations and citations omitted) (alteration in
original). "[S]ubstantive appellate review in sentencing cases is narrow and
deferential." Id. at 464 (quotation and citation omitted). "[I]t will be the unusual case
when we reverse a district court sentence—whether within, above, or below the
applicable Guidelines range—as substantively unreasonable." Id. (quotation and
citation omitted).
"Here, the district court's justifications for imposing a [60]-month sentence
rest[] on precisely the kind of defendant-specific determinations that are within the
special competence of sentencing courts, as the Supreme Court has repeatedly
emphasized." Id. (quotation and citation omitted) (second alternation in original). The
district court specifically considered "the history and characteristics of the
Defendant," which "includes under the law even offenses that have not been charged
or convicted if there's proof necessary to sustain those convictions." In varying
upward, the court stated that it had considered "all of the factors that I'm required to
consider under Title 18, United States Code Section 3553(a)." The court "mention[ed]
that murder involves the provision about the history and characteristics of the
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Defendant." The court also specifically addressed § 3553(a)(2)(C)—the need for the
sentence imposed "to protect the public from further crimes of the Defendant." But
the court reiterated that it had considered "all of the various sentencing [G]uidelines
as well as the ones that I specifically mentioned." Under these facts, the district court
did not abuse its broad discretion.
III. Conclusion
Accordingly, we affirm the judgment of the district court.
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