USA v. Timothy Dean Pettiway

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
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No. 19-13528
Non-Argument Calendar
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D.C. Docket No. 2:18-cr-00352-ECM-SMD-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

TIMOTHY DEAN PETTIWAY,

Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Alabama
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(August 31, 2020)
Before MARTIN, JORDAN, and NEWSOM, Circuit Judges.
PER CURIAM:
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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.
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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

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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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