United States of America, Plaintiff-appellee, v. Rob Nite, Defendant-appellant, 139 F.3d 909 (9th Cir. 1998)

MEMORANDUM^* 

Rob Nite appeals pro se his guilty plea conviction and 21-month sentence for mail fraud, in violation of 18 U.S.C. § 1341. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

Nite contends that the district court erred by denying his motion to withdraw his guilty plea. This contention is meritless.

The district court did not abuse its discretion by denying Nite's motion, because Nite failed to show a fair and just reason for withdrawing his plea. See United States v. Alber, 56 F.3d 1106, 1111 (9th Cir. 1995). The district court was entitled to credit Nite's representations under oath at the plea hearing that he was pleading guilty freely and voluntarily over his post-plea assertion that he "felt helpless, intimidated, and under pressure" to accept the plea agreement. See United States v. Hoyos, 892 F.2d 1387, 1400 (9th Cir. 1989.

Nite also contends that the district court erroneously calculated the amount of loss. The district court properly used Nite's intended loss to calculate his base offense level, because the intended loss exceeded the actual loss. See U.S.S.G. § 2F1.1, comment. (n. 7) (1995); United States v. Robinson, 94 F.3d 1325, 1328 (9th Cir. 1996).

Finally, Nite contends that the district court erred by imposing a partially concurrent sentence, greater than the sentence contemplated in the plea agreement. Contrary to Nite's assertion, the plea agreement did not contemplate a particular sentence. We conclude that the district court did not abuse its "significant discretion" in structuring Nite's sentence "to achieve a reasonable punishment for the instant offense," given that Nite was serving an undischarged term of imprisonment in Montana imposed as a result of similar activities. See U.S.S.G. § 5G1.3(c), p.s. (1995); United States v. Kimble, 107 F.3d 712, 713-15 (9th Cir.), cert. denied, --- U.S. ----, 117 S. Ct. 2471, 138 L. Ed. 2d 226 (1997).

Having carefully reviewed the parties' briefs and the record, we conclude that the remainder of Nite's claims lack support in the record, in our case law, or in both, and thus do not warrant further discussion.¹  Appellant's motions for reconsideration of this court's order denying bail pending appeal, for a ruling "on motions the district court refuses to hear," and for an order directing the government to disclose any pending investigations or indictments are denied.

AFFIRMED.