           Case: 19-13528   Date Filed: 08/31/2020   Page: 1 of 5



                                                         [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 19-13528
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 2:18-cr-00352-ECM-SMD-1


UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                 versus

TIMOTHY DEAN PETTIWAY,

                                                         Defendant-Appellant.

                      ________________________

               Appeal from the United States District Court
                   for the Middle District of Alabama
                     ________________________

                            (August 31, 2020)
Before MARTIN, JORDAN, and NEWSOM, Circuit Judges.

PER CURIAM:
              Case: 19-13528      Date Filed: 08/31/2020   Page: 2 of 5



      Timothy Dean Pettiway appeals his 33-month sentence for aiding and

abetting employee theft exceeding $1000 from an Indian gaming establishment.

After careful consideration, we affirm his sentence.

                                          I.

      In August 2018, Pettiway was charged with one count of conspiracy to

defraud and one count of aiding and abetting employee theft exceeding $1000 from

an Indian gaming establishment. In February 2019, Pettiway pled guilty to the

aiding and abetting charge, pursuant to a plea agreement. Pettiway’s plea

agreement included a waiver of his right to appeal or collaterally attack his

conviction or sentence.

      The presentence investigation report prepared in Pettiway’s case calculated

his imprisonment range under the United States Sentencing Guidelines to be 33

months to 41 months. In August 2019, the district court sentenced Pettiway to 33-

months imprisonment, followed by three years of supervised release, and ordered

him to pay $192,800 in restitution. On the government’s motion, Pettiway’s

conspiracy count was dismissed.

      Pettiway timely appealed to this Court. He argued that the district court

abused its discretion by imposing a substantively unreasonable sentence. The

government moved to dismiss Pettiway’s appeal pursuant to the appeal waiver in

his plea agreement. A panel of this Court denied the government’s motion because



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the record did not establish that Pettiway’s appeal waiver was knowing and

voluntary. 1

                                               II.

       This Court reviews the reasonableness of a sentence for an abuse of

discretion. United States v. Foster, 878 F.3d 1297, 1304 (11th Cir. 2018).

                                              III.

       Pettiway argues that the district court should have imposed a sentence below

the guideline range because of his age, his physical and mental health, and the non-

violent nature of his offense.

       “To arrive at an appropriate sentence, the district court must consider all of

the applicable [18 U.S.C.] § 3553(a) [sentencing] factors.” United States v.

Rosales-Bruno, 789 F.3d 1249, 1254 (11th Cir. 2015). The § 3553(a) factors

include: “(1) the nature and circumstances of the offense, (2) the defendant's

history and characteristics, (3) the kinds of sentences available, (4) the applicable

sentencing guidelines range, (5) pertinent policy statements of the Sentencing

Commission, (5) the need to provide restitution to any victims, and (6) the need to

avoid unwarranted sentencing disparities.” Id.; (citing 18 U.S.C. § 3553(a)). “A



       1
          In its brief, the government once again asks us to dismiss Pettiway’s appeal pursuant to
the appeal waiver in his plea agreement. We decline this invitation. The motions panel decided
that the record does not show that Pettiway knowingly and voluntarily waived his right to appeal.
We will not revisit this decision. Regardless of the validity of the appeal waiver, we agree with
the government that Pettiway does not succeed on the merits of his appeal.


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district court abuses its discretion when it (1) fails to afford consideration to

relevant factors that were due significant weight, (2) gives significant weight to an

improper or irrelevant factor, or (3) commits a clear error of judgment in

considering the proper factors.” United States v. Irey, 612 F.3d 1160, 1189 (11th

Cir. 2010) (en banc) (quotation marks omitted).

      Pettiway argues that the district court abused its discretion by sentencing

him within the guideline range and not granting a downward variance. He says a

downward variance was warranted because his offense was not violent, he is in his

mid-50s, and he lives with physical disabilities as the survivor of a drive-by

shooting.

      The district court did not abuse its discretion by imposing a 33-month

sentence. First, this sentence was at the bottom of Pettiway’s guideline range.

“Although we do not automatically presume a sentence within the guidelines range

is reasonable, we ordinarily expect a sentence within the Guidelines range to be

reasonable.” United States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008) (quotation

marks omitted and alteration adopted). Second, the district court expressly

considered the personal circumstances Pettiway points to on appeal. At

sentencing, the district court heard arguments about Pettiway’s physical ailments

and his need for surgery. The court concluded that, because Pettiway “received

medical care while [he was] incarcerated . . . [his] medical condition is [not] so



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dire that it warrants a variance in this case.” The court also considered that

Pettiway had been caring for his son, and noted that as Pettiway had “gotten older,

[he had] gotten more responsible.” It observed that Pettiway’s offense did “not

involve controlled substances or weapons or any violence,” but concluded that

there was still “an element of danger in the fact that [he] was committing a crime.”

The court further found it significant that Pettiway’s offense involved “the theft of

a significant amount of money,” which had not been recovered at the time of

sentencing. Finally, the court noted that Pettiway had “a lengthy and substantial

criminal history.”

      After considering these circumstances and weighing the § 3553(a)

sentencing factors, the court imposed a sentence of 33 months, the lowest sentence

within the guideline range. The district court did not abuse its discretion, because

this sentence was within “the range of reasonable sentences dictated by the facts of

[Pettiway’s] case.” See United States v. Pugh, 515 F.3d 1179, 1191 (11th Cir.

2008) (quotation marks omitted).

      AFFIRMED.




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