                          NONPRECEDENTIAL DISPOSITION
                           To be cited only in accordance with
                                    Fed. R. App. P. 32.1



              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,                        Appeal from the United States District
     Plaintiff-Appellee,                         Court for the Northern District of Illinois,
                                                 Eastern Division.
       v.
                                                 No. 06 CR 385 - 3
RAFAEL PARRILLA,
     Defendant-Appellant.                        John W. Darrah,
                                                 Judge.




                                          ORDER

        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 C IR. R. 51(b). We limit our review to the potential issues identified in
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. C RIM. 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 co-
conspirators’ 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.
