                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT



                             No. 01-20162
                           Summary Calendar


UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee,

versus

NEMESIA MORONTA,

                                           Defendant-Appellant.

                       --------------------
           Appeal from the United States District Court
                for the Southern District of Texas
                        USDC No. H-01-CV-43
                      USDC No. H-99-CR-463-2
                       --------------------
                          January 10, 2002
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*
     Nemesia Moronta, federal inmate # 83914-079, seeks a
certificate of appealability (COA) in her appeal from the
dismissal of her motion to vacate her sentence pursuant to 28
U.S.C. § 2255.    A COA may be issued only if the movant has made a
substantial showing of the denial of a constitutional right.      28
U.S.C. § 2253(c)(2).    If the district court's dismissal is on the
merits, "[t]he [movant] must demonstrate that reasonable jurists
would find the district court's assessment of the constitutional




     *
        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that this opinion should not be published and is not precedent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. 01-20162
                                  -2-

claims debatable or wrong."     Slack v. McDaniel, 529 U.S. 473,
484-85 (2000) (§ 2254 petition).
     Moronta argues that the district court erred when it
determined that she waived the right to appeal her sentence on
the grounds of ineffective assistance of counsel she asserted in
her § 2255 motion.   Because Moronta’s plea agreement explicitly
states that she did not waive claims of ineffective assistance of
counsel in § 2255 motions, a COA is GRANTED on this issue, the
district court’s denial of § 2255 relief on this claim is
VACATED, and the case is REMANDED for further proceedings on this
claim.
     Moronta argues the merits of her ineffective assistance of
counsel claims.   Moronta also argues that the district court did
not satisfy its duty, under Article III of the Constitution, to
try all crimes by jury.     And, she argues that the district court
failed to advise her of her right to appeal her conviction and
sentence.   Because the district court did not rule on the merits
of Moronta’s claims of ineffective assistance, or on the other
two issues, this court lacks jurisdiction to review them.     See
Whitehead v. Johnson, 157 F.3d 384, 387-88 (5th Cir. 1998).     A
COA is DENIED as to these issues.
     Moronta argues that the indictment against her is
unconstitutional under Apprendi v. New Jersey, 530 U.S. 466
(2000).   Because Moronta was sentenced to 57 months of
imprisonment, below the 40-year statutory maximum that she faced,
Apprendi is inapplicable.     See United States v. Doggett, 230 F.3d
160, 164-65 (5th Cir. 2000), cert. denied, 531 U.S. 1177 (2001).
A COA is DENIED on this issue.
     COA GRANTED, VACATE AND REMAND, IN PART; COA DENIED IN PART.
