                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 December 17, 2004

                                                           Charles R. Fulbruge III
                                                                   Clerk
                            No. 04-40541
                        Conference Calendar



UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

GABRIEL MARTINEZ-ESPARZA,

                                     Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. 7:03-CR-968-1
                      --------------------

Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.

PER CURIAM:*

     Gabriel Martinez-Esparza appeals his conviction and sentence

for carjacking, in violation of 18 U.S.C. § 2119.   Citing Blakely

v. Washington, 124 S. Ct. 2531 (2004), Ring v. Arizona, 536 U.S.

584 (2002), and Apprendi v. New Jersey, 530 U.S. 466 (2000),

Martinez-Esparza contends that his sentence was imposed under the

United States Sentencing Guidelines in violation of his Sixth

Amendment right to a jury trial and his Fifth Amendment right to

a grand jury indictment.    Martinez-Esparza also argues that his


     *
       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this opinion should not be published and is not precedent except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. 04-40541
                                  -2-

judgment of conviction must be vacated because the federal

carjacking statute, 18 U.S.C. § 2119, is an unconstitutional

extension of Congress’s power to regulate interstate commerce

under the Commerce Clause.

     As Martinez-Esparza acknowledges, his arguments are

foreclosed by this court’s decisions in United States v. Pineiro,

377 F.3d 464, 473 (5th Cir. 2004) (holding that Blakely has no

effect on the United States Sentencing Guidelines), petition for

cert. filed (U.S. July 14, 2004) (No. 04-5263), and United States

v. Jimenez, 323 F.3d 320, 322 (5th Cir.) (upholding the

constitutionality of 18 U.S.C. § 2119), cert. denied, 540 U.S.

847 (2003).   Accordingly, Martinez-Esparza’s conviction and

sentence are AFFIRMED.
