                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS           May 18, 2004
                       FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                                                                 Clerk

                           No. 03-41073
                         Summary Calendar



                     UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee,

                              versus

                      LEE ROY COLUNGA-AMBRIZ,

                                                 Defendant-Appellant.



          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. M-03-CR-282-1


Before JONES, BENAVIDES and CLEMENT, Circuit Judges.

PER CURIAM:*

          Lee Roy Colunga-Ambriz (“Colunga”) appeals his conviction

and sentence for carjacking, in violation of 18 U.S.C. § 2119.         He

argues that the district court erred in upwardly departing to the

statutory maximum of 15 years’ imprisonment because the departure

effectively negated his three-level reduction for acceptance of




     *
        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that this opinion should not be published and is not precedent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.
responsibility.      He   also   argues    that     18    U.S.C.    §   2119   is

unconstitutional.

          There was no error in the district court’s determination

that Colunga’s     criminal   history     category   significantly       under-

represented the seriousness of his criminal history. Additionally,

the district court properly found that Colunga’s recent similar

crimes indicated a high likelihood of recidivism and demonstrated

that prior punishment had not been an effective deterrent.                Thus,

whether the standard of review is abuse of discretion or de novo,

the district court did not err in departing upward.                See U.S.S.G.

§§ 4A1.3, p.s. and 5K2.0, p.s.

          The     district    court’s     reasons    for     departure     were

acceptable.     See United States v. Ashburn, 38 F.3d 803, 807 (5th

Cir. 1994) (en banc).        Furthermore, Colunga has demonstrated no

error regarding the extent of the departure.             Id.; see also United

States v. Daughenbaugh, 49 F.3d 171, 174-75 (5th Cir. 1995).

          Colunga acknowledges that his argument regarding the

constitutionality of 18 U.S.C. § 2119 is foreclosed by circuit

precedent.      See United States v. Jimenez, 323 F.3d 320, 322

(5th Cir.), cert. denied, 124 S. Ct. 124 (2003).            Nevertheless, he

raises the issue to preserve it for possible Supreme Court review.

Colunga’s argument is indeed foreclosed by Jimenez.                 See United

States v. Ruff, 984 F.2d 635, 640 (5th Cir. 1993).                 Accordingly,

his conviction and sentence are AFFIRMED.



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