Upward variance based on speculation affirmed

U.S. v. Zamarripa-Favela, 2014 WL 4921951 (10/2/14) (Kan.) (unpub'd) - Upward variance by the USDC Kansas affirmed. The court varied in a reentry case from a range of 15-21 months to a sentence of 36 months. The district court's speculation that 4 DUI convictions meant Mr. Z-F must have driven drunk on many other occasions was okay because it could sentence Mr. Z-F based on uncharged conduct. The 10th does not address the notion that due process requires some proof of uncharged conduct. The variance was not an abuse of discretion. It was based on that speculation, the dangerousness of the 4 DUIs and Mr. Z-F's 10 reentries. The court's policy disagreement as to how the Sentencing Commission treats prior DUIs is just fine. Finally, the 10th says the court didn't need to give detailed reasons for its sentence, which seems to conflict with the Lente case, 647 F.3d 1021, which requires an explicit consideration of material arguments against an upward variance.