UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 99-4683

TREVOR HUIE,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of West Virginia, at Beckley.

David A. Faber, District Judge.

(CR-99-9)

Submitted: January 28, 2000

Decided: March 21, 2000

Before WILKINS and TRAXLER, Circuit Judges,

and BUTZNER, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Hunt L. Charach, Federal Public Defender, Brian J. Kornbrath, Assistant Federal Public Defender, Charleston, West Virginia, for Appellant. Rebecca A. Betts, United States Attorney, John L. File, Assistant

United States Attorney, Charleston, West Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Trevor Huie, a federal inmate, was convicted pursuant to his guilty

plea of assaulting a correctional officer in violation of 18 U.S.C.

§ 111(a)(1), (b) (1994). On appeal, he alleges that the district court

erred by increasing his base offense level by two levels for more than

minimal planning under USSG § 2A2.2(b)(1). 1 Finding no reversible

error, we affirm.

The basic facts of this case are undisputed. Officer Marsh was sitting at his desk on the evening of December 24, 1998. As he stood

up to let a group of prisoners in from the recreation yard, Huie struck

him from behind. Huie continued to strike Officer Marsh repeatedly

with his hands and knees, causing significant injuries.

Huie admitted that he attacked Officer Marsh because he wanted

a disciplinary transfer to another facility. Huie planned the assault for

a time when there would only be one officer on duty and no other

officers nearby. This way, the length of the attack could be prolonged,

thereby increasing Huie's chances of obtaining a transfer. Huie further admitted that he communicated his plan to a friend during a telephone conversation earlier in the day. Finally, just prior to the attack,

Huie went to his cell to put a mouthpiece in his mouth and to put on

weightlifting gloves and steel-toed boots.2

We review the district court's determination that Huie's actions

constituted more than minimal planning for clear error and find none.

See United States v. Pearce, 65 F.3d 22, 26 (4th Cir. 1995). As

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1 U.S. Sentencing Guidelines Manual (1998).

2 Huie claimed that he put the boots on to keep his feet warm when

officers escorted him across the compound after the assault; not to serve

as a weapon during the attack.

 2
applied to the facts of this case, the phrase "more than minimal planning" is defined as "more planning than is typical for commission of

the offense in a simple form." USSG § 1B1.1, comment. (n.1(f)). We

find that this was not a "spur of the moment" assault, as one might

expect following a verbal altercation.3 Rather, the record supports the

district court's conclusion that this was a carefully planned attack.

Huie wore a mouthpiece to protect himself from any blows from

Officer Marsh or other officers coming to his rescue, boots to protect

himself from the cold after the assault, and gloves to protect his hands

and/or to minimize the injuries to Officer Marsh. 4 These actions combined with the information concerning Huie's motive for the assault

and the telephone conversation earlier in the day strongly suggest that

Huie formulated his plan well in advance of its execution. He did not

merely take advantage of an opportunity that presented itself at the

last minute.

Accordingly, we affirm Huie's sentence. We dispense with oral

argument because the facts and legal contentions are adequately presented in the materials before the court, and argument would not aid

the decisional process.

AFFIRMED

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3 See United States v. Foster, 898 F.2d 25, 27 (4th Cir. 1990).

4 There was some disagreement as to the purpose behind the gloves.

 3