Five-month Variance Affirmed

US v. Duarte-Hurtado, No. 08-2021, 2008 WL 4417197 (10th Cir. 10/1/08)(unpublished): Clearly this was a hard-fought case at every level, but, rejecting the defendant's arguments that a lower sentence was warranted, the Tenth affirms the five-month variance to 36 months (from 41) for a reentry defendant. The district court did not commit procedural error because the court thoroughly discussed the requested bases for downward departure (mental capacity and family circumstances) and weighed the 3553(a) factors. It was ok for the district court to address the issue of fast-track disparity and conclude that to impose a sentence at the same level as a defendant who accepted a fast-track plea would be inappropriate because it would fail to distinguish between those who took the deal and those who didn't. Some disparity as the result of such programs was acceptable. Additionally, nothing showed that the district court abused its discretion in granting a 5-month variance rather than a larger one.