          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                FILED
                                                                 October 2, 2009
                                 No. 08-20497
                               Summary Calendar               Charles R. Fulbruge III
                                                                      Clerk

UNITED STATES OF AMERICA,

                                            Plaintiff-Appellee

v.

DAVID HESTON GARY, also known as David Heston Harrell,

                                            Defendant-Appellant


                 Appeal from the United States District Court
                      for the Southern District of Texas
                         USDC No. 4:07-CR-316-ALL


Before WIENER, DeMOSS, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
      David Heston Gary appeals his guilty plea conviction for possession of a
firearm during and in relation to a drug trafficking offense. He argues that the
district court erred by accepting his guilty plea because the factual basis did not
establish that he carried a weapon in relation to an underlying drug trafficking
crime.




      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                 No. 08-20497

      Gary asserts that the issue should be reviewed for plain error because it
was not raised in the district court. To show plain error, the defendant must
show a forfeited error that is clear or obvious and that affects his substantial
rights. Puckett v. United States, 129 S. Ct. 1423, 1429 (2009). If the defendant
makes such a showing, this court has the discretion to correct the error but only
if it seriously affects the fairness, integrity, or public reputation of judicial
proceedings. Id.
      The Government’s factual basis showed that, following a traffic stop,
distributable quantities of narcotics and a firearm were found in a closed
compartment of the vehicle driven by Gary. However, Gary maintained at
rearraignment that the vehicle belonged to his niece and that he was not aware
that there was a firearm in the vehicle until, while being pursued by police due
to a traffic violation, he opened the compartment to hide the drugs.
      The record shows that Gary pleaded guilty pursuant to North Carolina v.
Alford, 400 U.S. 25 (1970).    An Alford plea is one in which the defendant
maintains his innocence but agrees to plead guilty. See Alford, 400 U.S. at 37
An Alford plea is constitutionally valid (i.e., voluntary and the result of a
knowing and intelligent choice by the defendant), so long as there is a factual
basis for the plea, and the court inquires into the conflict between the
defendant’s pleading guilty, yet maintaining innocence. Id. at 38 n.10; United
States v. Jack, 686 F.2d 226, 230 (5th Cir. 1982). The court may find the plea to
have been knowing and intelligent if the evidence presented substantially
negates the claim of innocence. Alford, 400 U.S. at 37-38.
      Gary’s guilty plea in this matter satisfies the requirements for an Alford
plea. The district court inquired extensively into the apparent conflict between
Gary’s assertion that he was only belatedly aware of the firearm’s presence and
his entry of a guilty plea to the charge of possessing a firearm during and in
relation to a drug trafficking offense. As the district court determined, the
Government had evidence that pointed strongly toward Gary’s guilt on charges

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related to the firearm. Moreover, any claim of lack of knowledge of the firearm
on the night in question would have been undermined by evidence that Gary had
previously driven the vehicle.
      Further, Gary’s statements at rearraignment demonstrate that he knew
that he was pleading guilty because the Government had evidence to negate
substantially his assertion of innocence and that he made a knowing and
intelligent decision to plead guilty rather than to stand trial. By pleading guilty
Gary reduced his total offense level by securing a three-level reduction for
acceptance of responsibility, an adjustment Gary would likely not have received
had he exercised his right to a trial. See U.S.S.G. § 3E1.1, comment. (n.2).
      Gary has not shown that the district court erred, plainly or otherwise, in
accepting his guilty plea. See Alford, 400 U.S. at 37-38 & n.10. The judgment
of the district court is AFFIRMED.




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