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that this opinion should not be published and is not precedent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.
2