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IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

UNITED STATES OF AMERICA §

§

vs. § NO. 1:20-cr-137-RP

§

CARLOS LUPERCIO §

REPORT AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

TO: THE HONORABLE ROBERT PITMAN

UNITED STATES DISTRICT JUDGE

The undersigned submits this Report and Recommendation to the District Court, pursuant to 

28 U.S.C. § 636(b), 18 U.S.C. § 3401(i), and Rule 1(d) of Appendix C of the Local Court Rules 

of the United States District Court for the Western District of Texas, Local Rules for the 

Assignment of Duties to United States Magistrate Judges. 

I. Procedural Background

On June 12, 2013, Carlos Lupercio was sentenced to 70 months imprisonment for Distribution 

of Methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2, followed by a fouryear term of supervised release. Mr. Lupercio’s supervision commenced on December 23, 2019, 

in the Southern District of California and was transferred to the Western District of Texas on 

June 15, 2020. 

In a Petition for Warrant or Summons for Offender under Supervision (“Petition”) (Dkt. 5), 

the Probation Office alleges that Mr. Lupercio tested positive for methamphetamine on 

December 30, 2020, and left Lifetime Recovery inpatient treatment for narcotics abuse without 

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permission on January 2, 2021. The Probation Office alleges that these actions violated the 

following conditions of Mr. Lupercio’s supervised release:

• A Special Condition requiring the defendant to participate in an inpatient substance 

abuse treatment program and follow the rules and regulations of that program. 

• Standard Condition No. 6: The defendant shall notify the probation officer at least ten 

days prior to any change in residence or employment. 

• Standard Condition No. 7: The defendant shall refrain from excessive use of alcohol 

and shall not purchase, possess, use, distribute, or administer any controlled substance 

or any paraphernalia related to any controlled substance, except as described by a 

physician.

A preliminary and final revocation hearing was set for 1 p.m. on February 3, 2021. 

Mr. Lupercio then waived his right to a preliminary revocation hearing. Dkt. 16.

II. Analysis

Pursuant to Fed. R. Crim. P. 32.1(b)(2) and (c), a person may waive a revocation hearing, and 

a hearing before modifying the conditions of probation or supervised release is not required if:

(A) the person waives the hearing; or (B) the relief sought is favorable to the person and does not 

extend the term of supervised release; and (C) an attorney for the government has received notice 

of the relief sought, has had reasonable opportunity to object, and has not done so. 

On January 28, 2021, the parties submitted an Agreed Recommended Disposition in Final 

Revocation Proceeding and Waiver of Defendant’s Appearance and Waiver of Hearing (“Agreed 

Recommended Disposition”). Dkt. 18. The Agreed Recommended Disposition states that 

Mr. Lupercio wishes to plead true to the violations alleged in the petition. He asks the Court to 

accept his plea of true and find that the proposed agreed resolution of the case would be an

appropriate disposition. Id. at 2.

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The parties further state in the Agreed Recommended Disposition that Mr. Lupercio’s counsel 

has reviewed the Petition with Mr. Lupercio and advised him of his rights to a preliminary and 

final revocation hearing, the disclosure of the evidence against him, and to make a statement and 

present mitigating information. Id. at 1. The agreed filing states that, after consultation with 

counsel, Mr. Lupercio wishes to waive his right to be present at his revocation hearing and also 

wishes to waive the hearing. Id. at 2. The agreed filing further states that the parties have conferred 

and agreed that an appropriate resolution of this matter would be to:

(1) accept Mr. Lupercio’s plea of true to the alleged violations; 

(2) revoke Mr. Lupercio’s term of supervised release; 

(3) sentence Mr. Lupercio to a period of incarceration of five (5) 

months; and 

(4) find that no supervised release should follow. 

Id. The parties state: “This disposition is favorable to Mr. Lupercio, and the Government does not 

object to it.” Id.

III. Findings of the Court

Based on the parties’ agreement and the Agreed Recommended Disposition, as well as 

Mr. Lupercio’s plea of “True” to the alleged violations, the Court finds that Mr. Lupercio violated 

conditions of his supervised release by using methamphetamine and leaving the Lifetime Recovery 

inpatient treatment program without permission. 

The parties state in the agreed filing that: “The proposed disposition is an appropriate sentence 

for Grade C violations that takes into account Mr. Lupercio’s underlying offense and the sentence 

that he served for it.” Id. The Agreed Recommended Disposition does not address the Adjustment 

Summary prepared by the Probation Office. Dkt. 20. According to the Adjustment Summary, the 

policy statements in Chapter Seven of the Sentencing Guidelines call for a range of imprisonment 

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of seven (7) to thirteen (13) months. The kinds of sentence and the sentencing range recommended 

by the United States Sentencing Guidelines, policy statements, and corresponding analysis are

among the revocation factors for courts to consider set out in 18 U.S.C. § 3583(e), which makes 

reference to the factors in 18 U.S.C. §§ 3553(a)(4) and (a)(5); see also U.S. v. Mathena, 23 F.3d 

87, 93 (5th Cir. 1994) (holding that Chapter Seven policy statements are advisory when sentencing 

defendant on supervised release revocation).

Having carefully considered the Petition, Adjustment Summary, and Violation Conduct 

Computation prepared by the Probation Office, the Magistrate Court questions whether the agreed 

disposition of five months imprisonment is too lenient in light of Mr. Lupercio’s actions while 

under supervision. A sentence within the recommended range of imprisonment would appear to 

be more appropriate. Nonetheless, the Magistrate Court acknowledges the agreement reached 

between Mr. Lupercio and the Government, which may have greater knowledge concerning 

Mr. Lupercio and the totality of the circumstances of his case.

IV. Recommendations

Based on the agreement between the Government and the Defendant (Dkt. 18), the Court 

RECOMMENDS that Mr. Lupercio’s supervised release be REVOKED and that Mr. Lupercio

be sentenced to five (5) months incarceration, with no supervised release to follow.

V. Objections

Because this is an agreed disposition, there will be no objections to this Report and 

Recommendation, and the matter is ripe for the District Court to act on it.

SIGNED on February 2, 2021.

SUSAN HIGHTOWER

UNITED STATES MAGISTRATE JUDGE

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