                                                                                  FILED
                             NOT FOR PUBLICATION                                  MAR 18 2014

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



                             FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                          No. 13-50093

               Plaintiff - Appellee,               D.C. No. 3:10-cr-03668-W-1

  v.
                                                   MEMORANDUM*
DAVID KINH DUC TRAN,

               Defendant - Appellant.


                    Appeal from the United States District Court
                      for the Southern District of California
                 Thomas J. Whelan, Senior District Judge, Presiding

                        Argued and Submitted March 4, 2014
                                Pasadena, California

Before: PAEZ, N.R. SMITH, and HURWITZ, Circuit Judges.

       David Kinh Duc Tran appeals a thirty-five year prison term imposed by the

district court after Tran pleaded guilty, in the middle of trial, to five counts of sexual

exploitation of a child in violation of 18 U.S.C. § 2251(c).

       1. Tran first argues that his conduct created an insufficient effect on commerce

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
to subject him to federal jurisdiction. In United States v. Clark, we rejected a similar

challenge to 18 U.S.C. § 2423(c), which criminalizes “illicit sexual conduct with

another person” by a United States citizen who “travels in foreign commerce.” 435

F.3d 1100, 1107, 1114 (9th Cir. 2006). Tran, an American citizen, recorded videos

in Vietnam that depicted him performing sexual acts with minors and then transported

the videos on a commercial airliner into the United States. This conduct involves a

greater utilization of the channels of foreign commerce than in Clark. See id. at 114-

15.

      2. Tran also contends the district court failed to inform him of all the rights

enumerated in Rule 11(b)(1) of the Federal Rules of Criminal Procedure before

accepting his change of plea. Because Tran did not raise this issue in the district

court, we review for plain error. United States v. Dominguez Benitez, 542 U.S. 74, 76

(2004). Tran thus “must show a reasonable probability that, but for the error, he

would not have entered the plea.” Id. at 83. Tran does not allege that he would not

have entered his plea but for the cited errors.

      Tran does argue, however, that the Rule 11 colloquy “was so lacking . . . that

the error was structural.” But the record establishes that his plea was both knowing

and voluntary. Thus, Tran has failed to show that any Rule 11 violation “seriously

affected the fairness or integrity” of his plea. United States v. Jimenez-Dominguez,


                                           2
296 F.3d 863, 870 (9th Cir. 2002).

       3. Tran argues there was an insufficient factual basis for accepting his pleas.

At the time the plea was accepted, the district court had before it defense counsel’s

proffer of a factual basis, testimony from the first two days of trial and documentary

evidence describing Tran’s unlawful conduct. And, prior to entering judgment on the

plea, see Fed. R. Crim. P. 11(b)(3), the court also had the presentence report and

Tran’s letters describing his participation in the creation of the videos. This was

sufficient.

       4. Nor did the district judge’s passing misstatement of Tran’s age as fifty-five,

rather than fifty-eight, during sentencing constitute plain error. The presentence

report reflected the correct age and there is no reasonable possibility that the

misstatement affected the sentence, as the district court carefully considered Tran’s

individual circumstances in imposing a below-Guidelines sentence. See United States

v. Becerril-Lopez, 541 F.3d 881, 894 (9th Cir. 2008).

       AFFIRMED.




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