                            No. 99-40697
                                 -1-

                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT



                            No. 99-40697
                          Summary Calendar



UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee,

versus

JAVIER ROBLEDO LUERA,

                                           Defendant-Appellant.

                        --------------------
            Appeal from the United States District Court
                 for the Southern District of Texas
                        USDC No. B-96-CV-239
                       USDC No. B-91-cr-241-9
                        --------------------
                           March 31, 2000

Before HIGGINBOTHAM, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

     Javier Robledo Luera, federal prisoner # 58650-079, seeks a

certificate of appealability (COA) to appeal the district court’s

denial of his 28 U.S.C. § 2255 motion to vacate, set aside, or

correct sentence.    A COA may be issued only if the prisoner has

made a "substantial showing of the denial of a constitutional

right."    28 U.S.C. § 2253(c)(2).   We review the district court’s

factual findings for clear error and its conclusions of law de

novo.    United States v. Placente, 81 F.3d 555, 558 (5th Cir.


     *
        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that this opinion should not be published and is not precedent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. 99-40697
                                 -2-

1996).   Ineffective-assistance-of-counsel claims involve mixed

questions of law and fact and are thus subject to de novo review.

Id.

      Luera argued in his § 2255 motion that: (1) his criminal

history score was calculated improperly; (2) the offense level

adjustment for his role as a supervisor was not supported by the

record or by a specific finding by the district court; (3) the

denial of an adjustment for acceptance of responsibility was

clearly erroneous; and (4) his counsel was ineffective for

failing to object to these errors at sentencing and to challenge

them on direct appeal.    The district court held that Luera’s

waiver of his right to direct appeal was valid, and Luera has

failed to show that this finding was clearly erroneous.     See

United States v. Gipson, 985 F.2d 212, 216 (5th Cir. 1993).       His

first three errors are therefore not cognizable in a § 2255

motion because they are nonconstitutional and could have been

raised on direct appeal.    United States v. Capua, 656 F.2d 1033,

1037 (5th Cir. 1981).    Luera’s valid waiver of his right to

appeal also bars his claim of ineffective assistance of counsel

on appeal.    Childs v. Collins, 995 F.2d 67, 69 (5th Cir. 1993).

Luera’s motion for a COA is DENIED with respect to these issues.

      However, the district court failed to address Luera’s claim

that he was denied the effective assistance of counsel at

sentencing.   This court lacks jurisdiction to consider whether to

grant or deny a COA regarding an issue that was not considered

first by the district court.    Whitehead v. Johnson, 157 F.3d 384,

387-88 (5th Cir. 1998).    Accordingly, the motion for COA is
                          No. 99-40697
                               -3-

GRANTED, with respect to this issue, the district court’s

judgment is VACATED, and the case is REMANDED for further

proceedings consistent with this opinion.
