     Case: 10-50934     Document: 00511539969         Page: 1     Date Filed: 07/14/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                            July 14, 2011
                                     No. 10-50934
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

LATARSHA ROSHILIA BARNES, also known as Latarsha Barnes,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 6:10-CR-82-1


Before KING, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
        Latarsha Roshilia Barnes appeals the 168-month sentence imposed
following her guilty plea conviction for attempted murder.
        Barnes’s sole argument on appeal is that the district court erred in
determining that her base offense level was 33 pursuant to U.S.S.G.
§ 2A2.1(a)(1). She argues that there are two base offense levels associated with
attempted murder and that it is “impossible to discern which base offense level
to apply.” According to Barnes, because “[t]he application of the two base offense

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
   Case: 10-50934    Document: 00511539969        Page: 2   Date Filed: 07/14/2011

                                  No. 10-50934

levels is a choice between the same conduct, with identical elements . . . the rule
of lenity should apply.” Review of this issue is for plain error. See United States
v. Price, 516 F.3d 285, 286-87 (5th Cir. 2008).
      Section 2A2.1 applies to two offenses: assault with intent to commit
murder and attempted murder. The base offense level under that section is 33
if “the object of the offense would have constituted first degree murder,” and 27
if “otherwise.” §§ 2A2.1(a)(1), (2). Section 2A2.1, comment. (n.1), references the
definition of murder set forth in 18 U.S.C. § 1111.
      Barnes does not dispute that she pleaded guilty to, and was convicted of,
attempted murder. Additionally, she does not dispute that the object of her
offense would have constituted first degree murder under § 2A2.1(a)(1) and
§ 1111.    Finally, the record reflects that she acted with the requisite
premeditation under § 1111. Thus, Barnes has failed to establish that the
district court committed any error, plain or otherwise.
AFFIRMED.




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