                                                       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.

                      --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                    USDC No. 4:04-CR-107-2-A
                      --------------------

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this opinion should not be published and is not precedent except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.
