United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 2, 2007
Charles R. Fulbruge III
Clerk
No. 04-11477
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TERRY WAYNE KING, JR.,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:04-CR-107-2-A
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Before DeMOSS, STEWART and PRADO, Circuit Judges.
PER CURIAM:*
Terry Wayne King, Jr., appeals the sentence imposed
following his conviction for bank larceny. He argues that the
district court erred in denying a reduction in his offense level
for acceptance of responsibility and that his sentence is
unconstitutional under United States v. Booker, 543 U.S. 220
(2005).
Reviewing the district court’s refusal to reduce King’s
offense level under a highly deferential standard, we hold that
the court did not err in denying King’s request for a reduction
*
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this opinion should not be published and is not precedent except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. 04-11477
-2-
for acceptance of responsibility. See United States v.
Washington, 340 F.3d 222, 227 (5th Cir. 2003). Because King
denied relevant conduct at the sentencing hearing, the district
court’s decision was not “without foundation.” See id.
King was sentenced pursuant to a mandatory guidelines scheme
held unconstitutional in Booker. The Government concedes that
the this issue was preserved through King’s objection in the
district court based on Blakely v. Washington, 542 U.S. 296
(2004), and that it cannot show that the error was harmless
beyond a reasonable doubt. See United States v. Walters, 418
F.3d 461, 464 (5th Cir. 2005). Accordingly, we VACATE King’s
sentence and REMAND to the district court for resentencing.