United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 2, 2006
Charles R. Fulbruge III
Clerk
No. 05-10857
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ERNESTO CRUZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:04-CR-254-5
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Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Ernesto Cruz pleaded guilty pursuant to a written plea
agreement to one count of possession with intent to distribute
more than 100 grams of heroin in violation of 21 U.S.C. § 841(a).
Cruz argues that his plea was invalid on several grounds.
Cruz claims that his attorney’s constitutionally ineffective
assistance in connection with his guilty plea rendered his plea
invalid. Generally, this court declines to review claims of
ineffective assistance of counsel on direct appeal. United
States v. Miller, 406 F.3d 323, 335-36 (5th Cir. 2005), cert.
*
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this opinion should not be published and is not precedent except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. 05-10857
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denied, 126 S. Ct. 207 (2005); see also United States v. Gibson,
55 F.3d 173, 179 (5th Cir. 1995). The Supreme Court has
emphasized that a 28 U.S.C. § 2255 motion is the preferred method
for raising a claim of ineffective assistance of counsel. See
Massaro v. United States, 538 U.S. 500, 503-04 (2003).
Accordingly, this court has “undertaken to resolve claims of
inadequate representation on direct appeal only in rare cases
where the record allowed [the court] to evaluate fairly the
merits of the claim.” United States v. Higdon, 832 F.2d 312, 314
(5th Cir. 1987). Cruz’s is not one of those rare cases.
Cruz also argues that his guilty plea was not voluntary
because the district court (1) violated Cruz’s constitutional
rights by failing to adequately inquire into the factual basis of
the plea and (2) violated FED. R. CRIM. P. 11(b)(1)(G) by failing
to adequately advise Cruz of the nature of the charges against
him and to ascertain Cruz’s understanding of those charges.
As Cruz failed to challenge the voluntariness of his plea or
the district court’s compliance with Rule 11, review is for plain
error, which requires Cruz to demonstrate (1) error, (2) that is
clear or obvious, and (3) that affects substantial rights. See
United States v. Vonn, 535 U.S. 55, 59 (2002); United States v.
Reyes, 300 F.3d 555, 558 (5th Cir. 2002). In considering the
“substantial rights” prong, we review the entire record to
determine whether there exists a “reasonable probability that,
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but for the error, he would not have entered the plea.” United
States v. Dominguez Benitez, 542 U.S. 74, 83 (2004).
If “a defendant pleads guilty while claiming his innocence,
the court commits constitutional error in accepting the plea
unless the plea is shown to have a factual basis.” Willett v.
Georgia, 608 F.2d 538, 540 (5th Cir. 1979). However, Cruz did
not plead guilty while maintaining his innocence. All of Cruz’s
denials of responsibility took place after he had signed the plea
agreement and the factual resume, after his rearraignment before
the district court, and after the district court accepted his
plea agreement. See FED. R. CRIM. P. 11(d); see also United
States v. Badger, 925 F.2d 101, 103-04 (5th Cir. 1991). In any
case, the plea had a factual basis. The facts recited in the
plea agreement and factual resume, and the colloquy at Cruz’s
rearraignment, all provide a factual basis for his conviction for
the charge set forth in the indictment.
Cruz’s argument that the district court failed to adequately
advise him of and ascertain his understanding of the charges
against him is also unavailing. Cruz has failed to demonstrate
that the district court varied from the requirements of Rule 11,
much less that any such variance affected his decision to plead
guilty. See FED. R. CRIM. P. 11; United States v. Dominguez
Benitez, 542 U.S. 74, 83 (2004).
For the foregoing reasons, the judgment of the district
court is AFFIRMED.