                                                        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.

                       --------------------
           Appeal from the United States District Court
                for the Northern District of Texas
                      USDC No. 3:04-CR-254-5
                       --------------------

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this opinion should not be published and is not precedent except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
                                -2-

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,
                            No. 05-10857
                                 -3-

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.
