                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             OCT 21 2011

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

UNITED STATES OF AMERICA,                        No. 10-50277

              Plaintiff - Appellee,              D.C. No. 2:05-cr-01157- GHK-2

  v.
                                                 MEMORANDUM*
EDWARD SEUNG OK, AKA ED OK,
AKA SEUNG MOK OK,

              Defendant - Appellant.


                   Appeal from the United States District Court
                      for the Central District of California
                    George H. King, District Judge, Presiding

                           Submitted October 14, 2011**
                               Pasadena, California

Before: D.W. NELSON and CALLAHAN, Circuit Judges, and ERICKSON, Chief
District Judge.***

       Appellant Edward Ok (hereafter “Ok”) appeals from a judgment and


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
             The Honorable Ralph R. Erickson, Chief District Judge for the U.S.
District Court for North Dakota, Fargo, sitting by designation.
sentence that was imposed on his pleas of guilty in the district court based on two

claims: First, that the factual basis offered at the time of his change of plea hearing

was insufficient; and, Second, that the district court abused its discretion in

denying Ok’s motion to withdraw his guilty pleas. We have jurisdiction pursuant

to 28 U.S.C. § 1291. Because Ok admitted to an adequate factual basis at the time

of his change of plea hearing and the district court did not abuse its discretion, we

affirm.

      Ok failed to raise a Rule 11 objection contemporaneously with his

sentencing in the district court so we review applying the plain error standard.

United States v. Vonn, 535 U.S. 55, 59 (2002). Under the plain error standard Ok

must show “a reasonable probability that, but for the error, he would not have

entered the plea.” United States v. Roblero-Solis, 588 F.3d 692, 701 (9th Cir.

2009) (quoting United States v. Dominguez Benitez, 452 U.S. 74, 83 (2004)).

Before this court may vacate Ok’s plea, we must be convinced as “informed by the

entire record, that the probability of a different result is sufficient to undermine

confidence in the outcome of the proceeding.” United States v. Escamilla-Rojas,

640 F.3d 1055, 1062 (9th Cir. 2011) (quoting Dominguez Benitez, 452 U.S. at 83);

See also Vonn, 535 U.S. at 59 (“A reviewing court may consult the whole record

when considering the effect of any error on substantial rights”).

      Ok claims that because the facts stated in the factual basis in the plea
agreement fail to mention the use of the mails, an essential jurisdictional element is

missing in his plea. He claims acceptance of the plea violates 18 U.S.C. § 1341.

Ok admits the district court specifically discussed the use of the mails in the plea

colloquy. He contends that this discussion was inadequate to satisfy the factual

basis because the colloquy was general in nature and related only to his

understanding of the charges.

      These arguments lack merit. Ok’s admissions during the plea colloquy form

a sufficient factual basis for his guilty plea. During the colloquy, Ok was informed

of the essential elements of the crime and admitted that he understood those

elements as they were set forth in the second superseding indictment. Among

those elements was an admission that Ok “used or caused to be used the mails to

carry out or attempt to carry out an essential part of the scheme.” When asked

whether he understood the nature of this charge, Ok responded, “Yes.” When

asked whether he “did the things which are charged against you” in the indictment,

Ok responded, “Yes.”

      Additional evidence supported Ok’s guilty plea. It is well established in this

circuit that when considering the factual basis for a plea, the district court may

consider all of the evidence before it at the time of the judgment. United States v.

Alber, 56 F.3d 1106, 1110 (9th Cir. 1995). The evidence may include matters that

go beyond the plea colloquy and include consideration of anything existing in the
record at the time of sentencing. United States v. Mancinas-Flores, 588 F.3d 677,

682 (9th Cir. 2009). Here, the government included additional information in a

fact statement attached to the plea agreement, and submitted a declaration from the

Los Angeles County Clerk’s Office stating that the grant deeds at issue were

mailed from the Clerk’s Office via the United States Postal Service. Even if Ok’s

plea colloquy were not enough to support his guilty plea (it was), these additional

facts would have been enough to do so.

      Ok’s argument that the district court was bound to consider nothing beyond

the factual basis offered in the plea agreement is specious. The plea agreement

itself provides that the statement of the factual basis “is not meant to be a complete

recitation of all facts relevant to the underlying criminal conductor all facts known

to the defendant that relate to that conduct.” More importantly, Rule 11 does not

require a factual basis to be set out in a written plea agreement. See Fed. R. Crim.

P. 11.1

      Finally, Ok contends that the district court abused its discretion in denying

his motion to withdraw his guilty pleas. Because the only basis for withdrawing

the plea was the alleged defectiveness of the plea agreement, and because it was



      1
        As the district court explained in this case, while it is a tradition in the
Central District of California to include a fact attachment in a plea agreement, there
is no requirement to do so. A mere tradition does not establish a legal requirement.
not plain error for the district court to conclude that the agreement provided a

sufficient basis on which to sustain the plea, the district court did not abuse its

discretion in denying Ok’s motion to withdraw his guilty plea.

      AFFIRMED.
