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

Summary

Defendant's Sentencing Memorandum in United States v. Dustin Sean McCabe, Case 9:24-cr-80103-AMC-1, in the U.S. District Court for the Southern District of Florida, West Palm Beach Division, entered on the docket August 5, 2025 as Document 122. The offense of conviction is seaman's manslaughter under 18 U.S.C. §1115, and the memorandum objects to the two-level special-skill enhancement under U.S.S.G. §3B1.3 that the Presentence Investigation Report applies because McCabe was the boat captain, arguing that the captain role is already part of the offense. It states that removing the enhancement would yield a total offense level of 24 and a guideline range of 51 to 63 months. The defense cites McCabe's lack of prior criminal history and conduct at trial, and asks for a sentence at the low end of that range or a downward variance.

Summary drafted by a model from the text of the original file linked on this page and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used

Full text

Case 9:24-cr-80103-AMC Document 122 Entered on FLSD Docket 08/05/2025 Page 1 of 6




                             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 2 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.
Case 9:24-cr-80103-AMC Document 122 Entered on FLSD Docket 08/05/2025 Page 3 of 6




  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
Case 9:24-cr-80103-AMC Document 122 Entered on FLSD Docket 08/05/2025 Page 4 of 6




  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;
Case 9:24-cr-80103-AMC Document 122 Entered on FLSD Docket 08/05/2025 Page 5 of 6




     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 6 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


File and source

File

122-sentencing-memorandum-by-dustin-sean-mccabe.pdf

Size

183,083 bytes

SHA-256

11a81b266a52893e240faaa3691aa05dd0c063c7a4e57f27b55df22c6ce2d4ff

Our copy

122-sentencing-memorandum-by-dustin-sean-mccabe.pdf

Original

PACER (login required)