Unpublished Disposition, 869 F.2d 1498 (9th Cir. 1989)

Annotate this Case
US Court of Appeals for the Ninth Circuit - 869 F.2d 1498 (9th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,v.Dennis BIERILO, Defendant-Appellant.

No. 87-5255.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 1, 1988.Decided Feb. 17, 1989.

Before SCHROEDER, REINHARDT and LEAVY, Circuit Judges.


Appellant Dennis Bierilo appeals the district court's order denying his motion to correct an illegal sentence pursuant to Rule 35(a) of the Federal Rules of Criminal Procedure.

The appellant pled guilty and was convicted of the offense of "illegal importation of a controlled substance, in violation of 21 U.S.C. §§ 952, 960, 963" as charged in Count I of a three-count indictment. He was sentenced in August of 1975. The sentence included a special parole term of ten years.

In 1986, he was found to have violated the special parole term and was incarcerated for the remainder. He then filed this motion, claiming that the special parole term had been unlawfully imposed. The district court denied the motion and this appeal followed. We affirm.

The essence of the appellant's claim is that he did not commit the crime of importation of heroin, but was guilty only of the crime of attempt because he was caught at the port of entry. He relies on Bifulco v. United States, 447 U.S. 381, 100 S. Ct. 2247 (1980), for the proposition that a special parole term may not be imposed for convictions for the crimes of attempt or conspiracy.

The appellant, however, was convicted of importation and his sentence was based upon that conviction. He does not now contend that the conviction and sentence were entered as the result of any mistake as to the description of the crime. Nor does he contend that his plea was not voluntary and intelligent, or that it was entered without compliance with the applicable requirements of Rule 11, Fed. R. Crim. P. He seeks to go behind the conviction in order to establish that he is guilty only of attempt, rather than attempt and importation.

In reviewing the legality of the appellant's sentence, or indeed in any collateral review of a guilty plea, our task is not to determine the appellant's guilt or innocence. "It is well settled that a voluntary and intelligent plea of guilty made by an accused person, who has been advised by competent counsel, may not be collaterally attacked." Mabry v. Johnson, 467 U.S. 504, 508 (1984) (footnote omitted). The appellant's contentions give rise, at most, to some doubt as to whether the state would have succeeded in proving its case against him as to the importation charge, but this cannot be the basis for Rule 35 relief in the face of his voluntary and intelligent guilty plea. "Waiving trial entails the inherent risk that the good-faith evaluations of a reasonably competent attorney will turn out to be mistaken either as to the facts or as to what a court's judgment might be on given facts." McMann v. Richardson, 397 U.S. 759, 770 (1970).

We thus need not decide whether the appellant actually committed the substantive offense of importation. In reviewing the legality of the sentence, we must determine whether the sentence was an appropriate one for the crime of which the appellant stood convicted. Here it clearly was. See 21 U.S.C. § 960(b) (1) (1982).



This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3