OBJECTIONS TO PRESENTENCE INVESTIGATION REPORT by Dustin Sean McCabe — USA v. McCabe (Dkt. 115)

Record facts

U.S. District Court for the Southern District of Florida · No. 9:24-cr-80103-AMC · Doc. 115 · 2025-05-22 · Docket on CourtListener

Summary

Defendant Dustin Sean McCabe's comprehensive objections to the Presentence Investigation Report, filed May 22, 2025 through attorney Terrence J. O'Sullivan under Rule 32(f) in United States v. McCabe, No. 9:24-cr-80103-AMC, in the U.S. District Court for the Southern District of Florida, as Document 115. The filing sets out ten objections to the report prepared on May 8, 2025, stating that the defendant was convicted under 18 U.S.C. § 1115 and 18 U.S.C. § 1343. It asks that language on causation, fraud, intent and alleged evasion be revised, and that the two-level obstruction of justice enhancement in paragraph 36 be stricken for lack of a finding under United States v. Dunnigan. It also objects to restitution references for Count One, non-adjudicated employment complaints, the vessel classification narrative and the PPP forgiveness documentation narrative. The filing is five pages.

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UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF FLORIDA 
WEST PALM BEACH DIVISION 
 
UNITED STATES OF AMERICA,   
 
CASE:. 9:24-cr-80103-AMC-1 
 
Plaintiff, 
 
V. 
 
DUSTIN SEAN MCCABE 
 
Defendant. 
 
____________________________/ 
 
 
 
 
DEFENDANT’S COMPREHENSIVE OBJECTIONS TO THE 
PRESENTENCE INVESTIGATION REPORT 
 
COMES NOW the Defendant, Dustin Sean McCabe, by and through counsel, and pursuant 
to Rule 32(f) of the Federal Rules of Criminal Procedure, respectfully submits the following 
comprehensive objections to the Presentence Investigation Report (PSR) prepared on May 
8, 2025. These objections are intended to correct, clarify, or strike language that is 
inaccurate, prejudicial, conclusory, or beyond the factual findings of the jury. The PSR must 
reflect a fair, impartial, and legally supportable record. 
Objection 1: Language Implying Direct Causation of Death (¶1, ¶20) 
The PSR repeatedly states that Mr. McCabe 'caused the death' of M.C.G.F. by 'misconduct, 
negligence, and inattention.' This implies a degree of direct and intentional causation not 
found by the jury. The jury found Mr. McCabe guilty under 18 U.S.C. § 1115 based on 
criminal negligence—not that he personally or intentionally caused the death. The 
language should be revised to: 'Mr. McCabe was convicted under 18 U.S.C. § 1115 based 
on a jury finding of criminal negligence.' 
Objection 2: Prosecutorial Language in Fraud Descriptions 
Phrases such as 'scheme and artifice to defraud,' 'used to enrich himself,' and 'in 
furtherance of the scheme' appear multiple times. These mirror the government’s charging 
Case 9:24-cr-80103-AMC   Document 115   Entered on FLSD Docket 05/22/2025   Page 1 of 5

language and go beyond the jury’s verdict. The defense requests that such phrasing be 
replaced with: 'Mr. McCabe was convicted of submitting materially inaccurate PPP loan 
applications, which the jury determined met the elements of 18 U.S.C. § 1343.' 
Objection 3: Language Suggesting Intent Beyond the Verdict 
Paragraphs referencing Mr. McCabe’s same-day statements about business income and 
loan submissions imply deliberate deception beyond the evidence. Paragraph 32 states he 
'used proceeds to enrich himself,' although no evidence at trial established misuse or 
personal gain from the loans. This should be revised to reflect the actual finding: 'Mr. 
McCabe was convicted of submitting PPP loan applications containing material 
misstatements.' 
Objection 4: Obstruction of Justice Language Based on Alleged Perjury 
Paragraph 36 applies a two-level enhancement for obstruction of justice based on eight 
government-alleged claims of perjury. However, Mr. McCabe was never charged with 
perjury, and the Court has made no formal finding that he willfully provided false testimony 
under the legal standard established in United States v. Dunnigan, 507 U.S. 87 (1993). The 
Supreme Court requires an independent judicial determination that the defendant gave 
false testimony about a material matter with willful intent to mislead. No such finding was 
made at any point to date. 
 
The enhancement is therefore not supported by the record, lacks legal justification, and 
unfairly inflates the guideline range. It should be stricken in full. Paragraph 36 must also be 
revised to remove all references to obstruction of justice and perjury. This language 
constitutes improper and prejudicial surplusage. 
Objection 5: Inclusion of Funeral Expenses and Emotional Losses 
The PSR includes a letter from the decedent’s sister requesting restitution for funeral and 
emotional losses. However, Count One—seaman’s manslaughter under 18 U.S.C. § 1115—
is not a qualifying offense under the Mandatory Victim Restitution Act (MVRA). Restitution 
for emotional suffering, funeral costs, or death-related losses is not legally permissible 
unless expressly authorized by statute. See 18 U.S.C. § 3663A; United States v. Johnson, 
440 F.3d 832 (6th Cir. 2006). To include such claims in the PSR is improper and prejudicial, 
and suggests to the Court an entitlement that the law does not support. 
 
Moreover, the victim’s family has already received a $300,000 insurance settlement paid by 
Mr. McCabe’s carrier in 2020, fully resolving all civil claims associated with the death. This 
payout further underscores the inappropriateness of duplicative restitution and rebuts any 
suggestion that no compensation has been made. 
 
The defense respectfully requests that all references to funeral expenses, emotional 
distress, and victim impact letters relating to Count One be removed from the PSR. 
Case 9:24-cr-80103-AMC   Document 115   Entered on FLSD Docket 05/22/2025   Page 2 of 5

Objection 6: Inclusion of Non-Adjudicated Employment Complaints 
Paragraph 98 references employment complaints from a former employer, including 
'reprimands' and 'altercations' unrelated to the instant offense. These incidents were never 
adjudicated, did not result in discipline relevant to this case, and have no probative value 
regarding the defendant’s character or criminal history. 
 
Inclusion of such material is unfairly prejudicial and invites the Court to rely on unverified 
hearsay to assess the defendant’s conduct. See United States v. Oliver, 525 F. App’x 241, 
243 (4th Cir. 2013) (reversible error to rely on unsupported PSR allegations not 
corroborated by evidence); United States v. Greene, 71 F.3d 232, 235 (6th Cir. 1995) 
(sentencing decisions may not be based on unreliable or uncorroborated information). 
 
Because these allegations are not linked to any criminal conviction or formal misconduct, 
they serve no legitimate purpose and should be stricken in their entirety from the 
Presentence Investigation Report. 
Objection 7: Language Suggesting Evasion or Dishonesty 
Paragraphs 14 and 15 reference Mr. McCabe allegedly walking away from a law 
enforcement conversation and suggest that he misrepresented the purpose of his boat. 
These statements are unverified, not supported by any criminal charge or official 
misconduct finding, and were not relevant to any issue adjudicated at trial. 
 
Including this language in the PSR is highly speculative, prejudicial, and inflammatory. It 
implies deceptive intent without factual foundation and has no bearing on the guideline 
calculation or statutory sentencing factors under 18 U.S.C. § 3553(a). Courts have 
repeatedly warned against the use of unsupported allegations that improperly influence 
sentencing outcomes. See United States v. Rone, 743 F.2d 1169, 1175 (7th Cir. 1984) (PSRs 
must be free from misleading information). 
 
The defense emphatically requests that this language be stricken in its entirety from the 
Presentence Investigation Report. 
Objection 8: Use of Guidelines Language Absent Enhancement 
The PSR makes references that imply Mr. McCabe exercised a 'special skill' or held a 
'position of trust' in a manner warranting heightened culpability. However, the Probation 
Office did not formally apply enhancements under U.S.S.G. §§ 3B1.3 (abuse of trust) or 
3B1.1 (aggravating role), nor did the Court make any such finding. 
 
Inclusion of this language without corresponding guideline application is misleading and 
prejudicial. It subtly suggests aggravating factors that were not charged, litigated, or 
adopted. Courts have held that sentencing decisions must not be based on uncharged 
enhancements or insinuations. See United States v. Stallings, 701 F. App’x 164, 167 (3d Cir. 
2017) (reversing sentence based on reliance on uncharged conduct); United States v. 
Case 9:24-cr-80103-AMC   Document 115   Entered on FLSD Docket 05/22/2025   Page 3 of 5

Sawyer, 588 F.3d 548, 554 (8th Cir. 2009) (sentencing court erred by considering position of 
trust where enhancement not applied). 
 
The defense requests that all such suggestive language be removed to preserve the 
integrity of the sentencing process. 
Objection 9: Mischaracterization of Recreational Vessel Classification 
(¶¶5, 18, 22, 24) 
The PSR repeatedly implies that Mr. McCabe engaged in intentional wrongdoing or 
deception by operating his vessel as a recreational boat. This mischaracterization appears 
in Paragraphs 5, 18, 22, and 24. However, Mr. McCabe’s vessel was lawfully classified as a 
recreational vessel under the Uninspected Passenger Vessel Act (UPVA) of 1993. The law 
explicitly permits the operation of vessels carrying six or fewer passengers for hire without a 
formal Coast Guard inspection or certification as a commercial passenger vessel. 
 
The classification was legally appropriate and consistent with federal maritime regulations. 
Suggesting that Mr. McCabe acted with criminal intent simply for using a lawful and 
recognized vessel classification distorts the facts and improperly colors the narrative of 
both the manslaughter and fraud charges. 
 
See United States v. Phillips, 367 F.3d 846, 856 (9th Cir. 2004) (regulatory violations must be 
distinguished from criminal misconduct); United States v. Peterson, 538 F.3d 1064, 1070 
(9th Cir. 2008) (conduct consistent with lawful interpretation of maritime regulations 
cannot form the basis for intent-based enhancements). 
 
The defense requests that all references to the vessel classification as misleading, 
deceptive, or improper be removed or revised to reflect its legal basis under the UPVA. 
Objection 10: Misleading Narrative Regarding PPP Forgiveness 
Documentation (¶¶22, 24) 
Paragraphs 22 and 24 of the PSR suggest that Mr. McCabe's loan forgiveness applications 
were fraudulent due to insufficient documentation. However, under the Economic Aid to 
Hard-Hit Small Businesses, Nonprofits, and Venues Act of December 2020, PPP loans 
under $150,000 were eligible for streamlined forgiveness. Borrowers were not required to 
submit supporting documentation with their forgiveness applications. Instead, they were 
allowed to certify compliance using a simplified form describing the number of employees 
retained, estimated payroll costs, and total loan value. 
 
The Small Business Administration's Procedural Notice 5000-20086 (January 2021) 
specifically stated that forgiveness for loans below $150,000 could be granted based on a 
one-page certification. This requirement did not change the borrower’s obligation to 
maintain records, but it eliminated the need to submit those records for forgiveness 
processing. 
Case 9:24-cr-80103-AMC   Document 115   Entered on FLSD Docket 05/22/2025   Page 4 of 5

 
Accordingly, the PSR’s implication that the absence of submitted documentation 
constitutes fraud is factually and legally inaccurate. See 15 U.S.C. § 9005(e); SBA 
Procedural Notice 5000-20086 (2021). The defense requests that any assertion of fraud 
based on the lack of documentation in the forgiveness process be removed or revised to 
reflect the regulatory standards in effect at the time. 
 
WHEREFORE, the Defendant respectfully requests that the U.S. Probation Office and the 
Court consider and sustain these objections, and revise the Presentence Investigation 
Report to reflect accurate, impartial, and legally supported findings consistent with the 
record and applicable law. 
 
 
Respectfully submitted, 
 
TERRENCE O’SULLIVAN 
FLA BAR 0644031 
 
 
CERTIFICATE OF SERVICE 
I HEREBY CERTIFY that a true and correct copy of the foregoing was electronically 
noticed through the CM/ECF system to Zachary A. Keller, AUSA, and all other parties of record, 
on this 22nd Day of May, 2025. 
 
 
 
 
 
 
 
 
Respectfully submitted, 
 
 
 
 
 
 
 
TERRENCE O’SULLIVAN 
 
 
 
 
 
 
 
3810 Murrell Road #340 
 
 
 
 
 
 
 
Rockledge, Florida 32955 
 
 
 
 
 
 
 
321-422-2882 (office) 
 
 
 
 
 
 
 
321-848-2144 
 
 
 
 
 
 
 
 
/s/ Terrence J. O’Sullivan, Esq. 
 
 
 
 
 
 
 
TERRENCE J. O’SULLIVAN 
 
 
 
 
 
 
 
Attorney for the defendant 
 
 
 
 
 
 
 
Florida Bar Number: 0644031 
 
 
 
 
 
 
 
Terrence@TerrenceOSullivanLaw.com 
Case 9:24-cr-80103-AMC   Document 115   Entered on FLSD Docket 05/22/2025   Page 5 of 5

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