United States v. McGrain

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22-661-cr
United States v. McGrain
United States Court of Appeals
For the Second Circuit
August Term 2023
Submitted: November 29, 2023
Decided: June 21, 2024
No. 22-661-cr
U NITED S TATES OF AMERICA,
Appellee,
v.
JOSEPH MCG RAIN,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of New York
No. 20-cr-6113, Wolford, Chief Judge.

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Before: L YNCH , PARK, and MENASHI, Circuit Judges.
Joseph McGrain was sentenced to 264 months’ imprisonment
for sexually abusing his then-girlfriend’s fourteen-year-old daughter
(“MV”) and obstructing the investigation into that abuse. At
sentencing, the district court (Wolford, C.J.) applied a two-offense-
level enhancement under section 2G2.1(b)(5) of the Sentencing
Guidelines because MV was in McGrain’s “custody, care, or
supervisory control” when McGrain abused her. It also denied
McGrain an offense-level reduction for acceptance of responsibility
because (1) McGrain merited an enhancement for obstruction of
justice and (2) he continued to deny both that he had a sexual
relationship with MV and that he convinced her to send him sexually
explicit images. Finally, in weighing the 18 U.S.C. § 3553(a)
sentencing factors, the district court determined that McGrain was
dangerous because he refused to admit the full extent of his conduct.
McGrain argues on appeal that each of these decisions was reversible
error, that his sentence should be vacated, and that his case should be
assigned to a different judge on remand.
We AFFIRM the judgment of the district court.
Martin J. Vogelbaum, Office of the Federal Public
Defender, Buffalo, NY, for Defendant-Appellant.
Katherine A. Gregory, Assistant United States Attorney
for Trini E. Ross, United States Attorney for the Western
District of New York, Buffalo, NY, for Appellee.

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PARK, Circuit Judge:
Joseph McGrain was sentenced to 264 months’ imprisonment
for sexually abusing his then-girlfriend’s fourteen-year-old daughter
(“MV”) and obstructing the investigation into that abuse. At
sentencing, the district court (Wolford, C.J.) applied a two-offense-
level enhancement under section 2G2.1(b)(5) of the Sentencing
Guidelines because MV was in McGrain’s “custody, care, or
supervisory control” when McGrain abused her. It also denied
McGrain an offense-level reduction for acceptance of responsibility
because (1) McGrain merited an enhancement for obstruction of
justice and (2) he continued to deny both that he had a sexual
relationship with MV and that he convinced her to send him sexually
explicit images. Finally, in weighing the 18 U.S.C. § 3553(a)
sentencing factors, the district court determined that McGrain was
dangerous because he refused to admit the full extent of his conduct.
McGrain argues on appeal that each of these decisions was reversible
error, that his sentence should be vacated, and that his case should be
assigned to a different judge on remand.
We affirm the judgment of the district court.

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I. BACKGROUND
A. Factual Background1
In the late spring or early summer of 2018, McGrain’s girlfriend
and her fourteen-year-old daughter, MV, moved into his house to live
with him full time. At one point, they shared a roughly 1,200-square-
foot, two-level home with at least two of McGrain’s daughters, the
daughter of McGrain’s cousin, and occasionally the daughters’
boyfriends, one of whom was MV’s brother.
MV’s mother and McGrain shared some parenting
responsibilities. MV’s mother was her primary parent and caregiver,
and she “usually” had the final say in parenting decisions. After some
initial disagreements over how to raise MV, she and McGrain agreed
to parent only their respective children. But McGrain still set the
“rules of the house,” often drove MV to school, and was usually the
only person home with MV after school.
MV and McGrain grew close, and she confided in him about
her difficulties changing schools after moving. She considered
McGrain the “father [she] never had” and thought of one of his
daughters as “a little sister.” When MV had trouble sleeping one
night, her mother trusted McGrain to lie down with her for comfort,
as McGrain did for his biological daughter when she had nightmares
and couldn’t sleep.
1 As discussed below, MV testified at a presentencing evidentiary
hearing. The district court found her testimony credible and McGrain does
not challenge that finding. This section is drawn from her testimony.

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McGrain took advantage of that trust to abuse MV sexually for
nearly a year and a half. The two had sexual intercourse roughly 400
times. McGrain regularly asked MV to send him sexually explicit
images, including images of herself engaged in sexual acts. MV
complied. And throughout, McGrain provided her with drugs,
including LSD, fentanyl, MDMA, cocaine, and marijuana.
On March 27, 2020, MV’s brother and others discovered
sexually explicit messages with McGrain on MV’s phone. They
confronted MV. One of McGrain’s daughters urged MV to delete all
her communications with McGrain, which MV tried to do. She
deleted messages and photographs shared via SnapChat, Instagram,
and text, but forgot to erase her Facebook messages. MV’s brother
wanted to recover the messages and so reached out to their biological
father and his girlfriend, who paid for the cellphone. The girlfriend
then contacted law enforcement, and police came to the house that
evening. McGrain was not arrested that night; the record is not clear
as to why.
MV left McGrain’s house the night the police came, but
McGrain continued to contact her. When MV told McGrain that law
enforcement had their Facebook messages, he told her that “death is
my way out” and that if MV “really want[ed] it to end, then tell them
you set it all up and lied.” MV protested that she couldn’t do that
because the police already had the messages and everyone in her
family knew what happened. To this McGrain responded, “well, I
know what I need to do.” Alarmed, MV asked McGrain to promise
that he wouldn’t kill himself, but McGrain didn’t respond. MV then

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told her biological father and his girlfriend about the conversation.
They contacted the police a second time. Sometime the next day,
McGrain deleted the contents of his cell phone. And a few days later,
McGrain was arrested pursuant to a criminal complaint charging him
with enticement of a minor, in violation of 18 U.S.C. § 2422(b).
B. Procedural History
1. McGrain’s Indictment and Guilty Plea
In August 2020, a grand jury in the Western District of New
York returned an indictment charging McGrain with (1) enticement
of a minor, in violation of 18 U.S.C. § 2422(b); (2) attempted
obstruction of justice for pressuring MV to tell law enforcement that
she had lied, in violation of 18 U.S.C. § 1512(b)(1); and (3) obstruction
of justice for deleting the contents of his phone, in violation of 18
U.S.C. § 1519.
McGrain attempted to plead guilty without a plea agreement
in April 2021. The district court refused to accept that plea because
McGrain refused to admit that he had sex with MV or intended to do
so when he was sending her the text messages on which the
enticement charge was based. Instead, McGrain claimed that he had
expressed his desire to have sex with MV only after she turned 18.
Without an admission that McGrain had or intended to have sex with
MV, his plea to the enticement charge would have lacked a factual
basis, so the district court could not accept it. See Fed. R. Crim. P.
11(b)(3).

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Later that month, the district court accepted a new guilty plea.
Although McGrain continued to maintain that he did not have sex
with MV, he admitted to encouraging her to send him sexually
explicit photographs of herself. He denied, however, that he ever
received any. The district court determined that enticing a minor
victim to send sexually explicit images would violate 18 U.S.C.
§ 2422(b) and so would be a sufficient factual basis for the plea. It also
determined that whether McGrain and MV had had sex would be “a
sentencing issue” “[b]ecause [it] will impact the Guideline
calculations, but it doesn’t impact whether or not there is a factual
basis to plead to the charge.” McGrain’s counsel agreed. The district
court also accepted McGrain’s guilty plea to the obstruction charges.
2. The Evidentiary Hearing
The district court scheduled an evidentiary hearing before
sentencing to resolve factual disputes arising from McGrain’s
presentence investigation report (“PSR”). The PSR applied the cross-
reference at section 2G1.3(c)(1) of the Sentencing Guidelines for child
pornography to McGrain’s section 2422(b) violation. McGrain’s plea
allocution triggered that cross-reference when he admitted that he
had encouraged MV to send him sexually explicit images of herself.
Applying the cross-reference, McGrain’s base offense level was
32. The PSR added: (1) two levels because MV was under the age of
sixteen (section 2G2.1(b)(1)(B)); (2) two levels because MV was in
McGrain’s “custody, care, or supervisory control” (section
2G2.1(b)(5)); (3) two levels because the offense involved the use of a
computer (section 2G2.1(b)(6)(B)); (4) two levels for obstruction of

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justice (section 3C1.1); and (5) five levels because McGrain had
engaged in a pattern of prohibited sexual conduct (section
4B1.5(b)(1)). Finally, the PSR subtracted two levels for acceptance of
responsibility (section 3E1.1(a)), for a total offense level of 43.
McGrain objected to the PSR, primarily contesting that he ever
had a physical sexual relationship with MV or that she was ever in his
custody, care, or supervisory control. He also filed a letter expressing
his remorse, saying that he was “again claiming responsibility for
[his] actions.” But he did not admit to his sexual abuse of MV or to
receiving sexually explicit images from her. After the district court
determined that it would need to hold an evidentiary hearing to
address McGrain’s objections to the PSR, he tried to withdraw nearly
all of them. He continued to object, however, to the application of the
section 2G1.3 cross-reference.
The district court determined that an evidentiary hearing
remained necessary because McGrain refused to admit that he had
sexually abused MV and the resolution of that factual dispute would
impact the Guidelines enhancements that would apply in calculating
his total offense level. The hearing took place over two days in
December 2021. MV testified at length about McGrain’s sexual abuse
as well as his demands that she send him sexually explicit images.
3. The District Court’s Conclusions and Sentencing
On February 1, 2022, the district court issued a decision finding
MV’s testimony “entirely credible and believable,” including the
portions establishing that McGrain had sex with MV “repeatedly and
consistently from the time she was 14 years old until on or about

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March 27, 2020.” United States v. McGrain, 583 F. Supp. 3d 392, 398
(W.D.N.Y. 2022). It found that McGrain’s “version of events” was
“not credible” and that McGrain’s claim at the plea proceeding that
he had not had sex with MV was perjurious. Id. at 399. The district
court found that McGrain had sex with MV, id.; that he caused her to
produce child pornography, id. at 399-400; and that MV was in his
custody, care, or supervisory control, id. at 401-02.
The district court sentenced McGrain to 264 months’
imprisonment, despite the fact that the Guidelines recommended a
life sentence. It calculated an offense level of 45 before reducing to
the maximum offense level of 43. The district court generally
followed the PSR’s calculation, including by applying the child
pornography cross-reference under section 2G1.3(c)(1), but it applied
no reduction for acceptance of responsibility. The district court based
its sentence on the offense conduct, the impact on MV, McGrain’s
efforts to cover up the conduct, and McGrain’s failure to admit the
full extent of what he had done, which demonstrated that he
continued to be “dangerous”: “[Y]ou haven’t [admitted the truth] up
to this point. And so you’re not remorseful, and, to me, that
demonstrates how dangerous you are because of the fact that you
have refused, after all of this, after an evidentiary hearing, after
having the minor victim come in and testify, bringing your daughters
in here to testify, you still, to this day, refuse to admit the truth.”
This timely appeal followed.

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II. DISCUSSION
McGrain makes three arguments on appeal. First, he
challenges the application of the “custody, care, or supervisory
control” enhancement under section 2G2.1(b)(5). Second, he claims
the district court erred by denying him credit for acceptance of
responsibility under section 3E1.1(a). And third, he asserts that the
district court’s factual finding that he is dangerous—and therefore
merits a greater sentence under 18 U.S.C. § 3553(a)—was not
supported by the record. We reject each of these arguments and
affirm the judgment of the district court.
A. “Custody, Care, or Supervisory Control” Enhancement
We review a district court’s interpretation and application of
the Guidelines de novo, and its findings of fact relevant to the
Guidelines’ application for clear error. See United States v. Cramer, 777
F.3d 597, 601 (2d Cir. 2015). McGrain argues that the “custody, care,
or supervisory control” enhancement should not apply because it
requires a defendant to have a “pre-existing parent-like position of
authority.” Appellant’s Br. at 37 (quoting United States v. Brooks, 610
F.3d 1186, 1201 (9th Cir. 2010)). We disagree. Parent-like authority is
sufficient to merit the enhancement, but it is not necessary. Although
we have not previously addressed in a published opinion the types of

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relationships to which the enhancement applies,2 the plain language
of section 2G2.1(b)(5) encompasses McGrain’s relationship with MV.
We begin with the text. Section 2G2.1(b)(5) of the Guidelines
requires a two-level enhancement “[i]f the defendant was a parent,
relative, or legal guardian of the minor involved in the offense, or if
the minor was otherwise in the custody, care, or supervisory control
of the defendant.” U.S.S.G. § 2G2.1(b)(5). Under the first part of this
Guideline, the enhancement applies to “a parent, relative, or legal
guardian of the minor” by virtue of their relationship alone. The
second part then includes other defendants without such a
2 In a summary order, we have considered the relationships covered
by section 2A3.1(b)(3)(A), which applies in criminal sexual abuse cases and,
like section 2G2.1(b)(5), provides for a two-level enhancement if the victim
was “in the custody, care, or supervisory control of the defendant.”
U.S.S.G. § 2A3.1(b)(3)(A). The relevant application note for section
2A3.1(b)(3)(A) is also virtually identical to the note for section 2G2.1(b)(5).
In United States v. Jass, 331 F. App’x 850 (2d Cir. 2009), we concluded that
the defendant’s “long-term status as the live-in girlfriend of the child’s
father permitted the district court to find that her status was sufficiently
akin to that of a stepmother to support a finding of some degree of custody
and supervisory control over the child even if the father exercised primary
custody and control.” Id. at 857. We also noted that “the district court’s
factual finding regarding [the defendant’s] custody and supervisory control
over the child victim[]” is reviewed “for clear error.” Id.; see also United
States v. Perez-Colon, 62 F.4th 805, 812 (3d Cir. 2023) (“[W]e review
application of the § 2G2.1(b)(5) enhancement for clear error.”); United States
v. Alfaro, 555 F.3d 496, 499 (5th Cir. 2009) (stating, in reviewing a district
court’s application of the enhancement under § 2G2.1(b)(5), that “[w]e
review for clear error this application of the Sentencing Guidelines in
question to the facts”).

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relationship but who nonetheless had “custody, care, or supervisory
control” of the minor. The word “otherwise” indicates that parents,
relatives, and legal guardians are examples of those who exercise
custody, care, or supervisory control but that such authority is not
restricted to parents, relatives, and legal guardians.
The question whether a minor is in the “custody, care, or
supervisory control” of a defendant “requires a case-by-case analysis
of the defendant’s relationship to the victim and the setting in which
the crime was committed.” United States v. Perez-Colon, 62 F.4th 805,
812 (3d Cir. 2023). As the application note explains, “[i]n determining
whether to apply this adjustment, the court should look to the actual
relationship that existed between the defendant and the minor and
not simply to the legal status of the defendant-minor relationship.”
U.S.S.G. § 2G2.1 cmt. n.5(A).
And although a relationship qualifying for the enhancement
may often be “parent-like,” the text of the Guideline is not so limited.
“[C]ustody, care, or supervisory control” may encompass a range of
other relationships in which a minor is “entrusted to the defendant,
whether temporarily or permanently.” Perez-Colon, 62 F.4th at 813 n.9
(quoting U.S.S.G. § 2G2.1 cmt. n.5(A)); see also id. at 813 (“Care and
supervisory control require some degree of authority over or
responsibility for the victim—something more than mere presence.
But that standard does not require parent-like authority.” (cleaned
up)). “The authority exercised by a relative can vary widely
depending on the relative and is often less than ‘parent-like.’” Id. at
813.

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Application note 5(A) to section 2G2.1 reinforces this
understanding. It explains that “[s]ubsection (b)(5) is intended to
have broad application and includes offenses involving a minor
entrusted to the defendant, whether temporarily or permanently. For
example, teachers, day care providers, baby-sitters, or other
temporary caretakers are among those who would be subject to this
enhancement.” U.S.S.G. § 2G2.1 cmt. n.5(A). This note supports the
ordinary reading of the text, which contemplates that a defendant
may have the requisite degree of authority over the minor without
qualifying as a parent, relative, or legal guardian. We thus reject
McGrain’s proposed requirement of parent-like authority as
inconsistent with the text of section 2G2.1.
Applying the Guideline to this case, McGrain’s relationship
with MV easily merits the enhancement. Even though MV’s mother
was her primary parent, the district court correctly determined that
McGrain shared some parental responsibilities with her. In
particular, McGrain lived with MV for over a year and a half. He set
the rules of the household for MV. He was frequently alone with MV
both while driving her to school and at home after school. MV
thought of McGrain as the “father [she] never had.” Both MV and her
mother trusted McGrain to comfort her, including by lying down
with MV at night. It is this relationship of trust and care that McGrain
abused by victimizing MV.
The Eighth Circuit confronted a virtually identical fact pattern
and applied the two-level enhancement under section 2A3.1(b)(3)(A)
in United States v. Balfany, 965 F.2d 575 (8th Cir. 1992). In that case,

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the defendant and the victim’s mother “lived together as husband and
wife,” and “[a]lthough they often disciplined their own children, . . .
they shared many household responsibilities, including caring for the
children at times.” Id. at 585. In addition, on “at least one occasion”
when sexual abuse occurred, the victim “was clearly in [the
defendant’s] sole custody and care.” Id. We likewise conclude that
the two-level enhancement under section 2G2.1(b)(5) applies here
because McGrain, among other things, lived with MV’s mother,
shared household responsibilities and parenting authority, and was
frequently trusted to care for MV alone.
In response, McGrain points to two decisions of other Circuits
finding the “custody, care, or supervisory control” enhancement to be
inapplicable. But neither resembles this case. In United States v. Blue,
255 F.3d 609 (8th Cir. 2001), the Eighth Circuit concluded that the
victim’s mother had never transferred care of the child to the
defendant, who assaulted the child when they were temporarily in
the bathroom together while the mother was home. Id. at 614-15.
Here, McGrain lived with MV when the abuse occurred and was
trusted to supervise her alone at least some of the time, including
when the abuse began. See id. (distinguishing cases in which
defendants babysat or supervised the victims while their parents
were absent). And in United States v. Blackbird, 949 F.3d 530 (10th Cir.
2020), the government “had not presented one iota of evidence that
the defendant actually controlled any aspect of the [victim’s] life.” Id.
at 532 (cleaned up). But here, McGrain set household rules and had
some say in parenting decisions for MV.

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We thus affirm the district court’s application of the
enhancement.
B. Acceptance of Responsibility Reduction
Section 3E1.1(a) of the Sentencing Guidelines allows a district
court to grant a two-level reduction in a defendant’s offense level “[i]f
the defendant clearly demonstrates acceptance of responsibility for
his offense.” U.S.S.G. § 3E1.1(a). McGrain challenges the district
court’s denial of this reduction.
“Whether the defendant has accepted responsibility is a factual
question, and a district court’s determination in this regard should
not be disturbed unless it is without foundation.” United States v.
Taylor, 475 F.3d 65, 68 (2d Cir. 2007) (cleaned up). The reduction for
acceptance of responsibility “is unavailable, absent ‘extraordinary
circumstances,’ to a defendant properly found to merit an
obstruction-of-justice enhancement.” United States v. McLeod, 251
F.3d 78, 82-83 (2d Cir. 2001) (quoting United States v. Champion, 234
F.3d 106, 110 (2d Cir. 2000)).
McGrain does not contest that he merited an enhancement for
obstruction of justice. Instead, he argues that this is an
“extraordinary” case for several reasons, including because (1)
“much” of his obstructive conduct occurred before his arrest; (2) he
pleaded guilty; (3) his failure to admit to a sexual relationship with
MV led to his admission that he attempted to get her to send him
sexual images, increasing his Guidelines range; and (4) his acceptance
of responsibility increased over time. We reject these arguments and

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affirm the district court’s conclusion that this case did not present
“extraordinary circumstances.”
First, it is not extraordinary that McGrain’s obstruction
occurred before his purported acceptance of responsibility. Engaging
in conduct that indicates acceptance of responsibility after having
obstructed justice does not necessarily entitle a defendant to a
reduction under section 3E1.1(a). See Champion, 234 F.3d at 108, 111
(affirming denial of acceptance-of-responsibility reduction when the
defendant “made false statements at the time of his arrest, submitted
a perjurious affidavit, and had two witnesses testify falsely on his
behalf” even though he later “confessed his guilt and provided
information to the police”). In any event, to whatever extent a sincere
and complete acceptance of responsibility after earlier obstructive
conduct could merit application of the sentence reduction in an
appropriate case, the district court here found that McGrain never
took responsibility or expressed remorse for his sexual abuse of MV.
Second, the fact that McGrain pleaded guilty and admitted to
certain facts concerning his relationship with MV does not entitle him
to a reduction for acceptance of responsibility. We have held that
“[a]lthough a guilty plea, combined with truthful statements about
the defendant’s offense and other relevant conduct, is significant
evidence of acceptance of responsibility, it can be outweighed by
conduct that is inconsistent with acceptance of responsibility.” United
States v. Strange, 65 F.4th 86, 91 (2d Cir. 2023) (internal quotation
marks omitted) (quoting United States v. Ortiz, 218 F.3d 107, 108 (2d
Cir. 2000)). The application notes similarly provide that “[a]

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defendant who enters a guilty plea is not entitled to an adjustment
under this section as a matter of right.” U.S.S.G. § 3E1.1 cmt. n.3.
Third, McGrain’s argument that his admission to soliciting
sexual images from MV increased his Guidelines range is incorrect.
Without applying the section 2G1.3(c)(1) cross-reference and keeping
everything else the same, McGrain’s offense level under the PSR
would have been 43. Although the district court calculated an offense
level of 45 using the cross-reference, 43 is the maximum offense level.
So McGrain’s Guidelines range would have been life regardless of the
cross-reference.3
Finally, McGrain’s claim that he should receive credit for an
incomplete, though increasing, acceptance of responsibility is without
support and without merit. We see no basis to disturb the district
court’s determination that McGrain showed a “lack of remorse.”
The district court’s factual determination that McGrain had not
accepted responsibility for his actions was well justified and not
without foundation. We thus affirm the district court’s denial of a
reduction for acceptance of responsibility.
3 The district court calculated a base offense level of 28 under section
2G1.3(a)(3) of the Guidelines without the cross-reference. It added five two-
level increases under sections 2G1.3(b)(1)(B), 2G1.3(b)(2)(B), 2G1.3(b)(3)(B),
2G1.3(b)(4)(A), and 3C1.1. That brought McGrain’s offense level to 38,
which he does not challenge. But the five-level increase under section
4B1.5(b)(1), which the district court applied with the cross-reference, also
would have applied without it. That makes McGrain’s offense level 43
regardless of the cross-reference.

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C. Dangerousness Finding
We review the district court’s finding that McGrain was
dangerous for plain error because he did not object to it. See United
States v. McCrimon, 788 F.3d 75, 78 (2d Cir. 2015).
To show plain error, “an appellant must demonstrate that
(1) there is an error; (2) the error is clear or obvious, rather than
subject to reasonable dispute; (3) the error affected the appellant’s
substantial rights, which in the ordinary case means it affected the
outcome of the district court proceedings; and (4) the error seriously
affects the fairness, integrity or public reputation of judicial
proceedings.” Id. (cleaned up).
The district court determined that McGrain was dangerous
based on the fact that he “h[ad] not been honest about what [he] did.”
McGrain argues that this had no evidentiary basis. He further claims
that the district court failed to explain why his denial of certain
relevant conduct made him dangerous and thus that it did not
“adequately explain the chosen sentence to allow for meaningful
appellate review and to promote the perception of fair sentencing.”
Gall v. United States, 552 U.S. 38, 50 (2007).
First, the district court’s factual determination that McGrain
was dangerous was supported and explained sufficiently by its
assessment—after two guilty-plea proceedings, a two-day
evidentiary hearing, and a sentencing hearing—that McGrain had not
been honest about or accepted responsibility for his actions. See, e.g.,
United States v. Broxmeyer, 699 F.3d 265, 295 (2d Cir. 2012) (“[L]ack of
remorse for, or even appreciation of, the seriousness of the totality of

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[a defendant’s] conduct [is] a circumstance that further expanded the
range of substantively reasonable sentences to allow the district court
to afford adequate specific deterrence and protection of the public.”).
Second, the district court adequately explained the reasons for
its sentence. It carefully reviewed the 18 U.S.C. § 3553(a) sentencing
factors and explained how they applied to McGrain. See United States
v. Genao, 869 F.3d 136, 142 (2d Cir. 2017) (“There is no requirement
that a judge imposing a sentence provide lengthy or elaborate
explanations of the often multiple aggravating and mitigating factors
about the offense and the offender, or the precise weight assigned by
the court to the various, sometimes competing policy considerations
relevant to sentencing.”). The district court addressed McGrain’s
upbringing and employment history, his struggles with depression,
the seriousness of his offense and the rest of the section 3553(a)
factors. And it concluded that McGrain’s refusal to be honest about
what he had done indicated that he remained “dangerous.”
The district court did not err in finding that McGrain was
dangerous or in increasing his sentence accordingly. We thus affirm
the district court’s judgment in its entirety and need not address
McGrain’s request to be resentenced by a different judge.
III. CONCLUSION
McGrain lived with, and sexually abused, MV for nearly a year
and a half before he was caught. He took advantage of his position of
trust to commit his crime. When discovered, he destroyed evidence
and attempted to manipulate MV in an effort to avoid prosecution for
his actions. At no point did he accept responsibility or even fully

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admit what he had done. We find no error in the district court’s
imposition of a 264-month sentence.
The judgment of the district court is affirmed.

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