                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  October 21, 2004

                                                           Charles R. Fulbruge III
                                                                   Clerk
                            No. 04-10382
                        Conference Calendar



UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

GARY DONNELL SIMMONS,

                                     Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                    USDC No. 3:02-CR-155-2-G
                      --------------------

Before JOLLY, JONES, and WIENER, Circuit Judges.

PER CURIAM:*

     Gary Donnell Simmons, federal prisoner #28403-177, appeals

the district court’s denial of his post-judgment motion seeking

removal from his presentence report of the notation of a

conviction in December 1980 for aggravated assault with a deadly

weapon, for which he received no criminal history points.

Simmons has appealed from the denial of a meaningless,

unauthorized motion.    See United States v. Early, 27 F.3d 140,

142 (5th Cir. 1994).


     *
       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this opinion should not be published and is not precedent except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. 04-10382
                                 -2-

     This appeal is without arguable merit and is therefore

frivolous.   See Howard v. King, 707 F.2d 215, 219-20 (5th Cir.

1983); 5TH CIR. R. 42.2.   Accordingly, the Government’s motion to

dismiss the appeal as frivolous is GRANTED.   Simmons is warned

that he will be subject to sanctions if he makes any further

frivolous filings.   APPEAL DISMISSED AS FRIVOLOUS; SANCTION

WARNING ISSUED.
