United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted March 24, 2010

Decided March 31, 2010

Before

FRANK H. EASTERBROOK, Chief Judge

 ANN CLAIRE WILLIAMS, Circuit Judge

 JOHN DANIEL TINDER, Circuit Judge

No. 09-2536

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

RAFAEL PARRILLA,

Defendant-Appellant.

Appeal from the United States District

Court for the Northern District of Illinois,

Eastern Division.

No. 06 CR 385 - 3

John W. Darrah,

Judge.

O R D E R

Rafael Parrilla pleaded guilty to conspiracy to possess methamphetamine with

intent to distribute and was sentenced to 59 months’ imprisonment. He filed a notice of

appeal, but his appointed lawyer moves to withdraw on the ground that the appeal is

frivolous. See Anders v. California, 386 U.S. 738 (1967). Parrilla has not responded to

counsel’s motion. See CIR. R. 51(b). We limit our review to the potential issues identified in

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1
No. 09-2536 Page 2

counsel’s facially adequate brief. See United States v. Cano-Rodriguez, 552 F.3d 637, 638 (7th

Cir. 2009). 

Parrilla, along with Alma Matias and two other Chicago residents, arranged for a

source in Nevada to ship them methamphetamine. They were caught after the second

shipment and charged with conspiracy and one substantive count of possession with intent

to distribute. See 21 U.S.C. §§ 846, 841(a)(1). Parrilla entered into a plea agreement and

promised to cooperate with the government’s investigation of Humberto Espina, the

purported Nevada source, in exchange for dismissal of the substantive count and a specific

sentence below the guidelines imprisonment range. See FED. R. CRIM. P. 11(c)(1)(C).

Parrilla testified before a grand jury and recounted a trip he and Matias made to

Las Vegas to buy drugs. According to Parrilla, Espina sold him an “8-ball” of

methamphetamine during the trip and procured a small amount of methamphetamine for

Matias. Parrilla also said that he, Matias, and Espina discussed Espina supplying them

drugs in the future. Finally, Parrilla stated that Espina later sent several packages of

methamphetamine, including the package that was intercepted by authorities and led to

the co-conspirators’ arrest, to Matias. In part on this basis, the government secured an

indictment against Espina.

But Parrilla lied to investigators and to the grand jury about the identity of the coconspirators’ source in Nevada. Forensic evidence linked not Espina, but an associate

named Nomar Fidel Castro to the shipped package. After his grand jury testimony, Parrilla

changed his story several times, first disclaiming personal knowledge about who obtained

the drugs for Matias during the Las Vegas trip or sent the package to her in Chicago but

later claiming that Castro (and not Espina) was the source. In later proffers, Parrilla also

recanted his testimony that he, Matias, and Espina had discussed Espina providing them

drugs in the future and his testimony that he bought an “8-ball” from Espina while in Las

Vegas.

As a result of these discrepancies, the government dropped its pending charges

against Espina, citing Parrilla’s unreliability as a government witness, and later moved to

void Parrilla’s guilty plea and plea agreement, attaching as evidence Parrilla’s grand jury

testimony. The district court held a hearing on the government’s motion. The government

did not call any witnesses, but stood on its motion after brief argument. Parrilla did not

request an evidentiary hearing; instead, he argued that he had always been truthful with

the government and that the discrepancies the government identified were the result of the

government’s focus on Espina and not Castro. The district court granted the government’s

motion, and Parrilla later pleaded guilty again to the conspiracy charge, this time without

any consideration from the government. The probation officer interviewed an agent who
No. 09-2536 Page 3

met with Parrilla during his proffers and included his comments in the presentence report. 

The agent stated that Parrilla initially claimed personal knowledge of Matias’ dealings with

Espina both in Las Vegas and later in Chicago. He also stated that Parrilla failed to tell the

government that Matias was communicating with Castro rather than Espina regarding the

drug shipments. Parrilla did not object to the inclusion of the agent’s statements in the

presentence report. The guidelines imprisonment range was 97 to 121 months, but, in

selecting a term of 59 months (1 month below the statutory minimum), the district court

gave Parrilla 38 months’ credit for time served on a discharged federal sentence in a related

case. See U.S.S.G §§ 5G1.3 cmt n.4, 5K2.23. 

Parrilla has not indicated that he wishes to challenge his guilty plea, and so counsel

appropriately refrains from discussing the voluntariness of the plea or the adequacy of the

plea colloquy. See United States v. Knox, 287 F.3d 667, 670–72 (7th Cir. 2002). Counsel

instead identifies only one potential issue for appeal: whether Parrilla could argue that he

did not violate the terms of his plea bargain and thus it was error to grant the government’s

motion to void the agreement. But plea agreements function as contracts, United States v.

Kelly, 337 F.3d 897, 901 (7th Cir. 2003); United States v. Lezine, 166 F.3d 895, 901 (7th Cir.

1999), and a defendant’s substantial breach frees the government to void the deal, Kelly, 337

F.3d at 901. The government need only prove a substantial breach by a preponderance of

the evidence to prevail on such a motion. See Kelly, 337 F.3d 897; United States v. Frazier, 213

F.3d 409, 419 (7th Cir. 2000). 

Counsel is correct that any argument that the district court erred by invalidating the

plea agreement would be frivolous. The district court’s decision was not clear error; the

chronology of events establishes that Parrilla was not—as required by the plea

agreement—completely truthful with the government. In its motion to vacate the plea and

the subsequent hearing, the government argued that, during proffers made after forensic

evidence belied Parrilla’s grand jury testimony against Espina, Parrilla’s story about who

supplied the methamphetamine to Matias changed several times, shifting in focus from

Espina to Castro. Parrilla’s plea agreement required him to provide “complete and truthful

information” in cooperating but his shifting stories undermined his usefulness as a witness. 

As a result, the government determined that it could no longer bring charges against either

Espina or Castro. Though a disputed allegation of substantial breach generally can be

resolved only by holding an evidentiary hearing, see Frazier, 213 F.3d at 419, Parrilla

acquiesced to the district court’s consideration of the government’s motion on briefing and

argument and did not request a full evidentiary hearing, choosing instead to argue that the

government’s account was not inconsistent with his own. He cannot now object to the

manner in which the district court considered the evidence. See United States v. Ervin, 540

F.3d 623, 630-31 (7th Cir. 2008).
No. 09-2536 Page 4

We also note that Parrilla received a sentence shorter than the 60-month minimum

he should have received in light of United States v. Cruz, 595 F.3d 744, 746-47 (7th Cir. 2010). 

That case holds that, although a sentencing court may reduce a defendant’s sentence based

on time a defendant has served on a related, discharged prison sentence, see U.S.S.G.

§ 5K2.23, the court may not in so doing reduce the later sentence below a statutory

minimum. Cruz, 595 F.3d at 746-47. But the government did not file a cross-appeal on that

issue, and so we leave Parrilla’s sentence undisturbed.

Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal.