Kellum

This appeal presents us with a question of first impression: May a defendant charged under two separate indictments that are later grouped together for sentencing receive a downward adjustment for acceptance of responsibility when he pleaded guilty to the charges in one indictment, but went to trial on the charges in the other indictment? The district court concluded that such a defendant was eligible for a two-level acceptance of responsibility adjustment, the government appeals, and we affirm.

I

Dr. Jerry H. Buss is the owner of the Los Angeles Lakers professional basketball franchise. Dwayne Kellum is not Dr. Buss. Dwayne Kellum is not Jerry Buss, Jr., a fictional “son” of Dr. Buss invented by Kellum for fraudulent purposes. Dwayne Kellum is not the Los Angeles Lakers’ “Senior Vice President.” Dwayne Kellum is not a scout for the Lakers. And Dwayne Kellum does not have a two-percent ownership share in the Lakers. Dwayne Kellum was convicted of fraud in this case after pretending to be all of the above personages. To Kellum’s detriment, the fraud quickly unraveled upon suspicious inquiry.

To appreciate the legal issue on the government’s appeal, we must elaborate this story…