Sentencing Memorandum by Dustin Sean McCabe — USA v. McCabe (Dkt. 122, S.D. Fla.)

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U.S. District Court for the Southern District of Florida · No. 9:24-cr-80103-AMC · Doc. 122 · 2025-08-05 · Docket on CourtListener

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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 SENTENCING MEMORANDUM 
 
COMES NOW the Defendant, Dustin McCabe, by and through undersigned counsel, and 
respectfully submits this Sentencing Memorandum in advance of his sentencing hearing, and in 
support of a sentence that is sufficient but not greater than necessary to satisfy the purposes of 
sentencing under 18 U.S.C. § 3553(a). This memorandum addresses both the improper application 
of a two-level enhancement under U.S.S.G. §3B1.3 and presents mitigating circumstances that 
warrant a more lenient sentence. 
I. OBJECTION TO ROLE IN THE OFFENSE ENHANCEMENT (U.S.S.G. §3B1.3) 
The Presentence Investigation Report (PSI), at paragraph 45, applies a two-level 
enhancement for “Adjustment for Role in the Offense,” asserting: “The defendant was a boat 
captain of the motor vessel involved in the death of M.C.G.F. Since the defendant used a special 
skill in a manner that significantly facilitated the commission or concealment of the offense, the 
offense level is increased by two levels.” DE 119 at 15 (emphasis supplied). 
 
Case 9:24-cr-80103-AMC   Document 122   Entered on FLSD Docket 08/05/2025   Page 1 of 6

This enhancement is improperly applied and should be removed. Pursuant to U.S.S.G. 
§3B1.3, a two-level enhancement is warranted only where a defendant uses a special skill in a 
manner that significantly facilitates the commission or concealment of the offense. Moreover, the 
guideline expressly prohibits application where the special skill is already incorporated into the 
base offense level: “This adjustment may not be employed if an abuse of trust or skill is included 
in the base offense level or specific offense characteristic.” U.S.S.G. §3B1.3. 
The Eleventh Circuit has clarified that the Government must establish both that the 
defendant possessed a special skill and that the defendant used that skill in a manner that 
significantly facilitated the commission or concealment of the offense. See United States v. Ward, 
222 F.3d 909, 911–12 (11th Cir. 2000). 
Here, the offense of conviction—seaman’s manslaughter under 18 U.S.C. §1115—
inherently applies only to persons in maritime positions such as captains. Mr. McCabe’s role as a 
vessel captain is an element of the offense, and the use of that status is already contemplated in 
the base offense level. Thus, applying a §3B1.3 enhancement would result in impermissible double 
counting. 
Further, the PSI fails to establish that Mr. McCabe used his maritime training or captain’s 
license to facilitate or conceal the offense in a manner beyond that required for the offense itself. 
There is no allegation or evidence that specialized navigational knowledge or other “special skills” 
were misused in a way that significantly contributed to the commission or concealment of the 
offense. 
Accordingly, the enhancement under §3B1.3 is legally and factually inapplicable and 
must be removed. Removal of the two-level enhancement would reduce Mr. McCabe’s total 
offense level to 24, resulting in a revised guideline range of 51 to 63 months. 
 
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II. MITIGATING FACTORS UNDER 18 U.S.C. § 3553(a) 
In determining an appropriate sentence, the Court is guided by the statutory directive to impose a 
sentence that is sufficient but not greater than necessary to comply with the purposes of sentencing. 
Several statutory factors under § 3553(a) support a sentence below the applicable guideline range 
or at the low end of a revised range. 
1. Nature and Circumstances of the Offense 
Mr. McCabe’s case arises from a tragic accident resulting in the loss of life. While the 
consequences are severe, the offense was not the result of deliberate criminal intent or malice. The 
conduct at issue, while serious, occurred in the context of a lawful boating activity that turned 
tragic. The absence of any intentional wrongdoing or willful disregard for human life supports a 
more tempered sentence. 
2. History and Characteristics of the Defendant 
Mr. McCabe is a first-time offender in his early fifties with no prior criminal history. He has led a 
law-abiding and productive life, maintaining steady employment as a licensed boat captain—a 
position that requires discipline, responsibility, and public trust. He possesses strong ties to his 
family and community, and has consistently expressed genuine remorse for the events leading to 
the offense. Nothing in his personal history indicates that he poses any ongoing threat to public 
safety, nor is there any indication that he is at risk for recidivism. 
3. Acceptance of Responsibility (Relevant § 3553(a) Consideration) 
Although Mr. McCabe proceeded to trial and did not qualify for a reduction under U.S.S.G. 
§3E1.1, his conduct throughout the proceedings nonetheless reflects a meaningful degree of 
personal accountability that the Court may consider under 18 U.S.C. § 3553(a). Prior to trial, Mr. 
McCabe stipulated that he would not pursue a defense strategy based on shifting blame to 
government witnesses or co-defendants. He did not seek to minimize the seriousness of the offense 
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or the loss of life involved. His conduct was respectful, restrained, and devoid of tactics intended 
to inflame or prolong the proceedings unnecessarily. While asserting his legal defenses, Mr. 
McCabe consistently demonstrated moral responsibility for the incident. 
Such posture, though insufficient to warrant a formal guideline reduction, is relevant to the broader 
inquiry into his character and rehabilitative potential. See United States v. Jones, 158 F.3d 492, 
500 (10th Cir. 1998) (noting that courts may consider acceptance of responsibility under § 3553(a), 
independent of §3E1.1). 
4. Need for Just Punishment, Deterrence, and Public Protection 
A guideline sentence, particularly one enhanced by an improperly applied two-level adjustment, 
would result in a punishment greater than necessary to meet the purposes of sentencing. Mr. 
McCabe has already faced significant consequences as a result of this case, including damage to 
his career and reputation. A reduced sentence will adequately promote respect for the law, afford 
just punishment, and serve the interests of both general and specific deterrence without imposing 
an excessive penalty. 
5. Need for Rehabilitation and Reintegration 
Mr. McCabe does not present a risk of recidivism and does not require extensive correctional 
treatment. A more measured sentence would allow for earlier reintegration into society, consistent 
with the goals of rehabilitation and productive reentry. 
 
III. CONCLUSION 
For the foregoing reasons, the Defendant respectfully requests that this Honorable Court: 
a. Decline to apply the two-level enhancement under U.S.S.G. §3B1.3; 
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b. Adopt a total offense level of 24, resulting in an advisory guideline range of 51 to 63 
months; and 
c. Impose a sentence at the low end of the revised range or consider a downward variance in 
light of the mitigating factors discussed herein. 
 
Respectfully submitted,   
 
 
TERRENCE O’SULLIVAN  
3810 Murrell Road #340  
Rockledge, Florida 32955  
321-422-2882 (office)  
321-848-2144  
  
CALISHA A. FRANCIS  
3920 Woodside Drive #10  
Coral Springs, Florida 33065  
954-612-6126  
 
  
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 5th Day of August, 2025.  
  
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 Mr. McCabe  
Florida Bar Number: 0644031  
Terrence@TerrenceOSullivanLaw.com  
  
 
CALISHA A. FRANCIS  
3920 Woodside Drive #10  
Case 9:24-cr-80103-AMC   Document 122   Entered on FLSD Docket 08/05/2025   Page 5 of 6

Coral Springs, Florida 33065  
954-612-6126  
  
/s/ Calisha A. Francis, Esq.  
CALISHA A. FRANCIS  
Attorney for Mr. McCabe Florida 
Bar Number: 96348 
cthomlaw@aol.com  
Case 9:24-cr-80103-AMC   Document 122   Entered on FLSD Docket 08/05/2025   Page 6 of 6

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