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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-50967

Summary Calendar

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).

United States Court of Appeals

Fifth Circuit

F I L E D

July 2, 2009

Charles R. Fulbruge III

Clerk
No. 08-50967

2

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 HerreraGarduno, 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.