           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                             July 2, 2009
                                     No. 08-50967
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff-Appellee

v.

MODESTO HERNANDEZ-TARANGO

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                          USDC No. 3:08-CR-1146-ALL


Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
       Modesto Hernandez-Tarango appeals his sentence following his guilty plea
conviction for illegal reentry into the United States. Hernandez-Tarango was
sentenced to 40 months of imprisonment and three years of nonreporting
supervised release. This sentence was above his advisory guidelines range of 21
to 27 months of imprisonment. Hernandez-Tarango contends that his sentence
should be vacated as substantively unreasonable because it was greater than
necessary to meet the requirements of 18 U.S.C. § 3553(a).

       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
                                  No. 08-50967

      After United States v. Booker, 543 U.S. 220 (2005), a sentence is reviewed
for abuse of discretion. Gall v. United States, 128 S. Ct. 586, 594 (2007). This
court “‘first ensure[s] that the district court committed no significant procedural
error’ and ‘then consider[s] the substantive reasonableness of the sentence
imposed.’” United States v. Herrera-Garduno, 519 F.3d 526, 529 (5th Cir. 2008)
(quoting Gall, 128 S. Ct. at 597). Hernandez-Tarango argues that the district
court failed to recognize that the punishment required by § 3553(a) relates to his
instant offense rather than the sentences he had received on prior convictions.
Hernandez-Tarango also contends that the seriousness of his instant offense is
lessened because his motive in committing the offense was visiting his
granddaughter and that his sentence was greater than necessary in light of his
personal history and characteristics.
      The district court indicated that Hernandez-Tarango had not responded
to “breaks” he received from courts in the past with respect to six prior
convictions for driving while intoxicated, had not responded to admonishments
about his drinking, and posed a danger to the community such that the district
court needed to protect the community from him. The district court indicated
that it sought to discourage Hernandez-Tarango from returning to the United
States. Hernandez-Tarango’s criminal history was one of the factors that the
district court was permitted to consider in imposing its sentence. See Herrera-
Garduno, 519 F.3d at 531. In addition, the district court’s statements reflect an
individualized assessment that took into account the history and characteristics
of Hernandez-Tarango, the need to promote respect for the law, the need for
deterrence, and the need to protect the community from further crimes by
Hernandez-Tarango. See § 3553(a). Hernandez-Tarango has not shown that the
district court abused its discretion in sentencing him to 40 months of
imprisonment.
      AFFIRMED.



                                        2
