                 FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA                    No. 08-30094
                Plaintiff-Appellee,
               v.                             D.C. No.
                                          3:07-cr-00047-TMB
TODD DOUGLAS JOHNSON,
                                               OPINION
             Defendant-Appellant.
                                      
        Appeal from the United States District Court
                 for the District of Alaska
       Timothy M. Burgess, District Judge, Presiding

                  Argued and Submitted
          January 23, 2009—Seattle, Washington

                 Filed September 10, 2009

     Before: Robert R. Beezer, Richard C. Tallman, and
             Milan D. Smith, Jr., Circuit Judges.

          Opinion by Judge Richard C. Tallman;
         Partial Concurrence and Partial Dissent by
                  Judge Milan D. Smith, Jr.




                           13039
13042              UNITED STATES v. JOHNSON




                         COUNSEL

M.J. Haden, Office of the Federal Public Defender for the
District of Alaska, Anchorage, Alaska, for the defen-
dant-appellant.

Erin E. White (argued), Nelson P. Cohen, United States Attor-
ney’s Office for the District of Alaska, Anchorage, Alaska,
for the plaintiff-appellee.


                         OPINION

TALLMAN, Circuit Judge:

  Defendant-Appellant Todd Johnson pled guilty to one
count of being a felon in possession of a firearm, in violation
                   UNITED STATES v. JOHNSON                13043
of 18 U.S.C. §§ 922(g) and 924(a)(1). On appeal Johnson
argues (1) that the district court improperly denied his motion
to suppress and (2) that the district court erred in declining to
award him a one-level downward adjustment pursuant to
§ 3E.1.1(b) of the Sentencing Guidelines. We have jurisdic-
tion under 28 U.S.C. § 1291, and we affirm.

                               I

   On October 19, 2006, Alaska State Trooper Vic Aye and
Deputy Troy Meeks of the United States Marshals Service
were serving federal warrants on the east side of Anchorage.
The officers were wearing plain clothes and driving an
unmarked sports utility vehicle. While the officers were
stopped at a traffic light across from the First National Bank,
Deputy Meeks noticed three suspicious individuals standing
in the bank’s parking lot next to a tan Buick sedan. The car
was parked about 20 feet from the bank’s front entrance and
its hood was raised. The three men—later identified as John-
son, David Brookins, and Alvin Nelson—were not looking
under the hood but instead appeared to be surveying the bank
and the surrounding area. As the officers drove away, Deputy
Meeks observed Johnson and Nelson head toward the bank’s
front door. Johnson, who was wearing a hooded sweatshirt
under a jacket, flipped up his hood partially obscuring his
face.

   His suspicions aroused, Deputy Meeks described to
Trooper Aye what he had just witnessed. The officers decided
to double back for another look. By the time they circled back
to the bank, the sedan’s hood had been closed, and Brookins
was alone in the vehicle sitting in the driver’s seat. The other
two men were nowhere to be seen. Trooper Aye decided to
enter the bank while Deputy Meeks stayed outside to surveil
Brookins.

   Once inside the bank, Trooper Aye immediately noticed a
teller nervously watching Johnson and Nelson, who were
13044             UNITED STATES v. JOHNSON
standing in line. The men were whispering to each other, and
Johnson appeared to be surveying the bank lobby. Trooper
Aye approached another bank employee who also appeared to
be eyeing the men. He surreptitiously identified himself as a
state trooper and asked the employee if everything was
alright. She responded “no,” and also appeared nervous.

   Although not in uniform, Trooper Aye could still be recog-
nized as a law enforcement officer. He was carrying several
pieces of police equipment including a sidearm, taser, and
two-way radio and he was wearing a bulletproof vest under-
neath his outer clothing. At some point, Johnson looked
directly at Trooper Aye, said something to Nelson, and imme-
diately walked out of the bank. Deputy Meeks observed John-
son exit the bank and stand at the driver’s side of the sedan.
Johnson appeared to gesture to Brookins before getting into
the back seat. Trooper Aye and Deputy Meeks communicated
by cellular phone as to what each had just witnessed. Trooper
Aye then left the bank and rejoined Deputy Meeks in the
police vehicle. The officers decided to stop and question the
men. They pulled behind the sedan and activated their emer-
gency lights.

   The officers approached the car and displayed their badges.
They verbally identified themselves as law enforcement offi-
cers and asked for identification. Trooper Aye told Johnson
and Brookins that the whole incident “might be a misunder-
standing” and that they “just want[ed] to talk with [them].”
The men cooperated with the officers’ request that they step
out of the car. Deputy Meeks patted down Brookins and dis-
covered a loaded .25 caliber handgun in his front pocket and
a spare magazine in his back pocket. Deputy Meeks informed
Trooper Aye, who was talking to Johnson, that he had found
a gun. The officers then conducted a patdown search of John-
son and located another semi-automatic pistol in his coat
pocket. The officers handcuffed Johnson and Brookins and
seated them on the curb. Nelson then emerged from the bank
and walked toward the sedan with his hands in his pockets.
                      UNITED STATES v. JOHNSON                     13045
Having already discovered that his associates were armed, the
officers drew their own weapons and demanded that Nelson
place his hands in plain view. After conducting a patdown
frisk, which uncovered no additional firearms, the officers
secured Nelson.

   The officers explained to the three suspects that the matter
still could be a misunderstanding, but they needed to run their
identifications to determine whether they had any active war-
rants or other criminal history. At that point, Johnson volun-
teered that he had a previous drug conviction in Florida.1
Deputy Meeks and Trooper Aye contacted the Anchorage
Police Department (“APD”), whose officers responded and
took over the investigation.

   On April 19, 2007, Johnson was indicted in the District of
Alaska on a single count of being a felon in possession of a
firearm, in violation of 18 U.S.C. §§ 922(g) and 924(a)(1). He
was arrested soon thereafter in Miami, Florida, and trans-
ported to Anchorage where he was arraigned. Johnson ini-
tially pled not guilty. He filed a motion to suppress all
evidence obtained as a result of the detention, including the
pistol officers had found in his coat pocket. Johnson also noti-
fied the prosecution that he intended to plead guilty if his sup-
pression motion was unsuccessful.

   On October 1, 2007, a magistrate judge held an evidentiary
hearing on the motion, at which both Deputy Meeks and
Trooper Aye testified. After evaluating the evidence and wit-
ness testimony, the magistrate recommended denial of John-
son’s suppression motion, concluding that officers had
reasonable suspicion that criminal activity might be afoot to
detain Johnson for questioning and to conduct a patdown
  1
   In August 2006, Johnson was convicted in Broward County, Florida,
of delivery of cocaine, a second degree felony. The record before us is
unclear, however, whether Johnson disclosed to the officers that the prior
conviction was a felony conviction.
13046              UNITED STATES v. JOHNSON
search. On November 19, 2007, the district court, over John-
son’s objections, adopted the magistrate’s recommendation in
full and denied Johnson’s motion to suppress. O n November
27, 2007, Johnson formally entered a conditional guilty plea,
which reserved his right to appeal the denial of his suppres-
sion motion.

   At sentencing, the government did not oppose a two-level
reduction to Johnson’s offense level for acceptance of respon-
sibility under United States Sentencing Guidelines
(“Guidelines” or “U.S.S.G.”) § 3E1.1(a), as recommended in
the presentence investigation report. The government, how-
ever, declined to move for an additional one-level decrease
under § 3E1.1(b), citing Johnson’s decision to pursue the sup-
pression issue on appeal. The district court, after considering
the parties’ arguments, rejected Johnson’s argument that he
should nonetheless be awarded the third-level adjustment
because he timely pled guilty and thus permitted the govern-
ment to avoid preparing for a trial. The court then sentenced
Johnson to thirty months incarceration followed by three
years of supervised release. This appeal followed.

                              II

   [1] Johnson first appeals the district court’s denial of his
suppression motion, which we review de novo. See United
States v. Bautista, 362 F.3d 584, 588-89 (9th Cir. 2004).
Whether there is reasonable suspicion to justify an investiga-
tory stop is a mixed question of law and fact also reviewed de
novo. See United States v. Hall, 974 F.2d 1201, 1204 (9th Cir.
1992). We review factual findings for clear error. See United
States v. Patayan Soriano, 361 F.3d 494, 501 (9th Cir. 2004).
Contrary to Johnson’s argument that the seizure of the firearm
stemmed from a violation of his Fourth Amendment rights,
we think the record amply supported a “stop and frisk” under
Terry v. Ohio, 392 U.S. 1 (1968).

  [2] “The Fourth Amendment applies to all seizures of the
person, including seizures that involve only a brief detention
                      UNITED STATES v. JOHNSON                      13047
short of traditional arrest.” United States v. Enslin, 327 F.3d
788, 795 (9th Cir. 2003) (quoting United States v. Brignoni-
Ponce, 422 U.S. 873, 878 (1975)). Police may detain or seize
an individual for brief, investigatory purposes, provided the
officers making the stop have reasonable suspicion “that crim-
inal activity may be afoot.” United States v. Orman, 486 F.3d
1170, 1173 (9th Cir. 2007) (quoting Terry, 392 U.S. at 30).
If an officer reasonably suspects the individual may be armed
and dangerous, the officer may “frisk” the person he has
stopped to determine if the individual is carrying any weap-
ons. United States v. Washington, 387 F.3d 1060, 1067 (9th
Cir. 2004) (citing Terry, 392 U.S. at 30). This frisk is limited
to a patdown of the exterior clothing. Id.

   “Reasonable suspicion ‘is formed by specific, articulable
facts which, together with objective and reasonable infer-
ences, form the basis for suspecting that the particular person
detained is engaged in criminal activity.’ ” United States v.
Thompson, 282 F.3d 673, 678 (9th Cir. 2002) (quoting United
States v. Rojas-Millan, 234 F.3d 464, 468-69 (9th Cir. 2001)).
“To determine whether reasonable suspicion existed, the court
must consider the totality of the circumstances surrounding
the stop.” Hall, 974 F.2d at 1204. This determination is made
with reference to the “collective knowledge of the officers
involved, and the inferences reached by experienced, trained
officers.” Id. (quoting United States v. Sharpe, 470 U.S. 675,
682 (1985)).

   [3] We first dispose of Johnson’s contention that his initial
seizure amounted to an arrest and therefore required probable
cause from the outset. He argues that he was under arrest from
the moment officers activated their emergency lights, pulled
their vehicle behind the parked sedan, and approached the car.
Based on our review of the record, we disagree.2 The record
  2
   We conclude that the factual findings made by the district court are not
clearly erroneous. The findings are well supported by the evidence pre-
sented at the suppression hearing, including the testimony of Trooper Aye
and Deputy Meeks, which the district court obviously found credible.
13048                  UNITED STATES v. JOHNSON
reveals that Trooper Aye and Deputy Meeks identified them-
selves and simply asked to talk to Johnson and Brookins, who
fully cooperated with the officers’ request that they exit their
vehicle and submit to a frisk.

   [4] After finding weapons, the officers were justified in
handcuffing Johnson and Brookins as they waited for the third
suspect to emerge from the bank. See United States v. Bravo,
295 F.3d 1002, 1010-11 (9th Cir. 2002) (noting that, although
handcuffing is a substantial factor in the determination, the
totality of the circumstances remains the test for deciding
whether a suspect was arrested or merely detained). Even
after all three men were secured with handcuffs while the offi-
cers ran a background check, the officers repeatedly reassured
the suspects that the detention might be nothing more than a
misunderstanding and that its purpose was merely investiga-
tory. Taken together, the circumstances of Johnson’s deten-
tion would lead a reasonable person to believe that he was
free to leave once the officers conducted a brief inquiry and
allayed their suspicions. See id. at 1011. The district court did
not err in finding that Johnson was not under arrest, but rather
merely detained, during the material time period.3

   [5] The investigatory stop and frisk was supported by rea-
sonable suspicion on facts quite similar to those in Terry
itself, where an alert detective suspected three men of casing
a business for a possible robbery. The specific, articulable
   3
     The government does not dispute that Johnson’s detention ultimately
escalated into an arrest. See United States v. Robertson, 833 F.2d 777, 780
(9th Cir. 1987) (“We often confront the issue of when a legitimate ‘Terry
stop,’ for which only reasonable suspicion of criminal activity is required,
escalates into an arrest for which probable cause is required. The differing
standards for each reflect the differing degrees of intrusion characteristic
to each.”). But, it is readily apparent that Johnson’s arrest did not occur
until well after the officers had conducted the patdown search and discov-
ered the firearm in his coat pocket, and even after Johnson volunteered
that he had a prior conviction. Therefore, the precise moment of arrest is
not material to the suppression issue before us.
                   UNITED STATES v. JOHNSON              13049
facts known to Deputy Meeks and Trooper Aye were more
than sufficient to support their suspicion that Johnson and his
associates were casing a bank for a potential robbery and not
merely experiencing car trouble. When two of the individuals
entered the bank, one flipped up the hood on his hooded
sweatshirt, which could aid in concealing his identity. The
third man remained outside, lowered the hood of the car, and
sat in the driver’s seat. The two men inside the bank were
seen whispering to one another while one appeared to surveil
the lobby area. A visibly nervous bank employee told Trooper
Aye that something was amiss in the bank. When one of the
suspects became aware of Trooper Aye’s presence, he whis-
pered something to his associate, left the bank, and returned
to the sedan waiting outside. A trained law enforcement offi-
cer could reasonably suspect that these individuals might well
be intending to rob the bank and flee in the waiting getaway
car.

   [6] Given the nature of the suspected criminal activity, the
officers were also justified in patting down Johnson. As Dep-
uty Meeks testified, in his experience, “[a]lmost everybody
has weapons” in Alaska. But here the officers suspected that
a bank robbery was about to take place, which increased their
suspicion that the men might be armed. Moreover, the sus-
pects outnumbered the officers by three to two. Trooper Aye
and Deputy Meeks were therefore justified, for their own
safety, in conducting a patdown frisk of Brookins and John-
son to check for weapons. This is especially true in Johnson’s
case. After Deputy Meeks first discovered a loaded pistol and
an extra ammunition clip in Brookins’s possession, the offi-
cers had an even greater basis to suspect that Johnson might
likewise be armed and that another patdown frisk was war-
ranted for officer safety.

   [7] We are unmoved by Johnson’s efforts to provide inno-
cent explanations for the conduct both outside and inside the
bank. Whether this incident was indeed a foiled bank robbery
attempt or a simple misunderstanding is not material to his
13050                 UNITED STATES v. JOHNSON
suppression motion or this appeal. Applying a “totality of the
circumstances” review of the facts then known to them, the
officers possessed substantial information supporting a rea-
sonable suspicion that criminal activity was afoot and that
weapons might be involved. The investigatory stop and frisk
of Johnson and the discovery of his semi-automatic handgun
did not violate his Fourth Amendment rights. The district
court properly denied his motion to suppress the evidence.

                                   III

   [8] Under the Guidelines, a defendant who “clearly demon-
strates acceptance of responsibility for his offense” is entitled
to a two-level decrease in offense level. U.S.S.G. § 3E1.1(a);
see United States v. Espinoza-Cano, 456 F.3d 1126, 1133-34
(9th Cir. 2006). Johnson received this reduction at sentencing.
He challenges the district court’s refusal to grant him an addi-
tional one-level downward adjustment under § 3E1.1(b) after
the government declined to move for the extra reduction.4 A
district court’s decision whether to reduce a defendant’s sen-
tence for acceptance of responsibility is reviewed for clear
error. Espinoza-Cano, 456 F.3d at 1130. A district court’s
interpretation and application of the Guidelines are reviewed
de novo. United States v. Becker, 919 F.2d 568, 570 (9th Cir.
1990).

  [9] The Guidelines provide for, but do not mandate, an
additional one-level reduction upon a motion by the govern-
ment. Subsection (b) of § 3E1.1 states:

      If the defendant qualifies for a decrease under sub-
  4
    Although merely advisory after United States v. Booker, 543 U.S. 220
(2005), sentencing courts must consult the Guidelines as a “starting point”
for the sentencing determination and the advisory “range must be calcu-
lated correctly.” United States v. Carty, 520 F.3d 984, 991 (9th Cir. 2008)
(en banc), cert. denied sub nom. Zavala v. United States, 128 S. Ct. 2491
(2008).
                     UNITED STATES v. JOHNSON                   13051
      section (a), the offense level determined prior to the
      operation of subsection (a) is level 16 or greater, and
      upon motion of the government stating that the
      defendant has assisted authorities in the investigation
      or prosecution of his own misconduct by timely noti-
      fying authorities of his intention to enter a plea of
      guilty, thereby permitting the government to avoid
      preparing for trial and permitting the government
      and the court to allocate their resources efficiently,
      decrease the offense level by 1 additional level.

U.S.S.G. § 3E1.1(b). As we have said, “the government’s dis-
cretion to file a motion under section 3E1.1(b) is ‘a power,
not a duty.’ ” Espinoza-Cano, 456 F.3d at 1135 (quoting
United States v. Moreno-Trevino, 432 F.3d 1181, 1186 (10th
Cir. 2005)). “[T]he government has been vested with broad
discretion to determine when the § 3E1.1(b) adjustment is
appropriate.” United States v. Medina-Beltran, 542 F.3d 729,
731 (9th Cir. 2008) (per curiam) (internal brackets omitted).

   [10] This discretion, however, is not limitless. Like many
of our sister circuits, we have held that “a prosecutor is
afforded the same discretion to file an acceptance of responsi-
bility motion for a third-level reduction under section
3E1.1(b) as that afforded for the filing of a substantial assis-
tance motion under section 5K1.1.” Espinoza-Cano, 456 F.3d
at 1136. A district court may review the government’s refusal
to file a § 3E1.1(b) motion and grant the additional one-level
reduction sua sponte if it finds that the decision was (1) ani-
mated by an unconstitutional motive (e.g., racial discrimina-
tion), or (2) arbitrary—i.e., not rationally related to a
legitimate governmental interest. Id.; see also Moreno-
Trevino, 432 F.3d at 1185-86. The burden of showing uncon-
stitutional motive or arbitrariness rests on the defendant.
Espinoza-Cano, 456 F.3d at 1136.5
  5
   The panel unanimously reaches the same result, and all judges agree
that the government here presented a legitimate reason for declining to
13052                  UNITED STATES v. JOHNSON
   [11] The government did not file a § 3E1.1(b) motion for
the third-level reduction, citing Johnson’s stated intention to
appeal the suppression order. Accordingly, the issue before us
is whether the allocation and expenditure of prosecutorial
resources for the purposes of defending an appeal is a rational
basis for declining to move for the third reduction point. We
hold that it is. When § 3E1.1(b) speaks of conserving govern-

move for the discretionary § 3E1.1(b) point reduction. However, Judge
Smith, in his concurring opinion, advocates for a distinct two-part inquiry
that no circuit, including ours, has ever employed or even suggested.
There is good reason for this universal conclusion. Most significantly, it
defies the plain text of the Guidelines provision, which conditions the sen-
tencing court’s authority to decrease by one additional level for acceptance
of responsibility “upon motion of the government.” U.S.S.G. § 3E1.1(b).
Thus, when a defendant such as Johnson challenges the government’s
refusal to file such a motion, the only inquiry that courts engage in is
whether that refusal was improperly motivated. See United States v.
Beatty, 538 F.3d 8, 14 (1st Cir. 2008) (joining “[e]very other circuit that
has considered th[e] revised provision” and holding that a defendant who
challenges the prosecutor’s refusal to file a § 3E1.1(b) motion must show
that the refusal “was based on an unconstitutional motive or was not ratio-
nally related to any legitimate Government end” (internal quotations omit-
ted)).
   Further, separating the legal question into separate parts makes little
sense from a practical standpoint. For instance, if Johnson did not plead
guilty in a manner described in § 3E1.1(b), that would serve as a legiti-
mate, non-arbitrary reason for the government to withhold the motion.
Under our colleague’s interpretation, Johnson would not be “eligible” for
the discretionary reduction in the first instance (and presumably the gov-
ernment need not present an explanation at all). The result is the same.
Rather than ruminate further on what arguably amounts to semantics, we
merely note that the purpose of the 2003 amendments to § 3E1.1(b), dis-
cussed infra, was to assign control of the availability of the additional
reduction point to the prosecution. In the Commission’s view, the govern-
ment is in the best position to evaluate whether the defendant has acted in
a way that clearly demonstrates acceptance of responsibility for his
offense, and whether he did so in a fashion that saved the government and
the court resources in the particular case. Despite innumerable opportuni-
ties, no circuit court has sought to bifurcate the analysis in the manner our
colleague does. We see no reason to depart from the wisdom of our pre-
decessors.
                   UNITED STATES v. JOHNSON               13053
ment resources in the “prosecution” of the defendant’s “mis-
conduct,” it means more than simply trial preparation.
“Prosecution” is commonly understood to encompass the
entirety of the criminal proceedings in a particular case until
judgment is final and certain. The government has an interest
in securing outright guilty pleas. A conditional plea does not
provide finality to the matter, and the government must then
allocate precious resources to the appeal. Time and personnel
are not unlimited. Resources devoted to appeals are resources
lost to prosecuting other cases.

   In United States v. Espinoza-Cano, our circuit’s seminal
case relating to the government’s discretion under § 3E1.1(b),
the defendant contended that he was entitled to the extra
acceptance of responsibility reduction, despite the absence of
a motion by the government, because he had stipulated to all
the facts necessary to establish his guilt, thereby assisting in
a manner that allowed the government to avoid preparing for
trial. 456 F.3d at 1134. After establishing the proper standard
applicable when the district court may act without a govern-
ment motion, we rejected the defendant’s argument because
the stipulated bench trial—which the district court dubbed a
“semi-modified Rule 11 colloquy” or “slow plea,” id. at 1129
—still required the expenditure of resources. Id. at 1138. We
explored the legitimate reasons that justified the government’s
decision to withhold a § 3E1.1(b) motion:

    Even if we were to equate a stipulated bench trial
    with an outright guilty plea, the government still
    would not have been compelled to file the motion.
    There are rational reasons for the government to pre-
    fer an outright guilty plea to a stipulated bench trial.
    In particular, as the government urges, a plea of
    guilty allows the government to avoid expending
    resources “anticipating, and ultimately defending, a
    complete appeal.” As noted in Wade, “[t]he Govern-
    ment’s decision not to move may[be] based . . . sim-
13054                 UNITED STATES v. JOHNSON
       ply on its rational assessment of the cost and benefit
       that would flow from moving.”

Id. (quoting Wade v. United States, 504 U.S. 181, 187 (1992))
(citation omitted).

   While the particular facts of Espinoza-Cano are admittedly
distinguishable from the conditional guilty plea in the instant
case, the broad scope of the government’s discretion was
established. Indeed, we applied Espinoza-Cano and reached
the same conclusion in United States v. Medina-Beltran a case
strikingly similar to ours. The defendant, having pled guilty
to illegal reentry following deportation, appealed the district
court’s refusal to grant him the third reduction point under
§ 3E1.1(b). Medina-Beltran, 542 F.3d at 731. We rejected his
argument that the government had acted arbitrarily by declin-
ing to file the required motion, stating:

          Although Medina-Beltran pled guilty and avoided
       a trial on the substantive offense, he objected to his
       sentencing enhancement and rejected the govern-
       ment’s proposed appeal waiver. The government
       anticipated and defended his appeal of his sentence.
       Under these circumstances, the government’s deci-
       sion not to move for the additional level reduction
       was not arbitrary.

Id.6
  6
    The concurrence curiously denounces both Espinoza-Cano and
Medina-Beltran as “largely inapposite.” We respectfully but strongly dis-
agree with our colleague’s reasoning. The concurrence, for example,
insists that “we can only speculate” about the circumstances of Medina-
Beltran, where we upheld the government’s decision not to move for a
§ 3E1.1(b) reduction because the government was forced to “anticipate[ ]
and defend[ ] [Medina-Beltran’s] appeal.” 542 F.3d at 731. We hope our
colleague is not suggesting that we can minimize as not pertinent any
opinion authored by other panels based on bald speculation that the panels
might have forgotten to mention or purposefully omitted facts or circum-
                       UNITED STATES v. JOHNSON                      13055
   [12] Likewise, we conclude that the government here has
presented an adequate reason for declining to file the discre-
tionary motion—a reason that cannot fairly be characterized
as arbitrary or based on an unconstitutional motive. Johnson’s
guilty plea was conditional, and he made clear that he
intended to continue to pursue a favorable suppression order
on appeal. If successful, the basis for the federal charge would
dissolve. As the government maintains, Johnson “has not
‘accepted responsibility in a way that ensures the certainty of
his just punishment in a timely manner.’ ” United States v.
Newson, 515 F.3d 374, 377 (5th Cir. 2008) (quoting U.S.S.G.
§ 3E1.1 cmt. background).7 Avoiding the expenditure of addi-
tional resources in anticipation of and defending against an
appeal is a legitimate governmental interest. See Medina-
Beltran, 542 F.3d at 731; Espinoza-Cano, 456 F.3d at 1138.
Quite clearly, the government’s proffered reason here is ratio-
nally related to this end. Because the government’s decision
not to file a § 3E1.1(b) motion was neither arbitrary nor based
on an unconstitutional ground, the district court appropriately
refused to grant Johnson the additional one-level reduction
sua sponte.

  We once again find support for our holding in our sister cir-
cuits, which have confronted similar challenges to the govern-
ment’s broad discretion under § 3E1.1(b). See, e.g., Espinoza-

stances material to their holding. Once we entertain this type of judicial
analysis, virtually any opinion becomes as readily distinguishable as the
limits of the human imagination. Such a dismissive view of case law is
unwise. We addressed the proper analysis of the current version of
§ 3E1.1(b) in Espinoza-Cano and applied it in Medina-Beltran. We take
the holdings in both of those cases for what they state and faithfully follow
them here.
   7
     We merely note the nature of Johnson’s appeal because it is relevant
to his degree of acceptance of responsibility, which is the essence of
§ 3E1.1. We do not imply that Johnson might have had a more compelling
argument had he only sought to preserve his right to appeal issues pertain-
ing to the sentencing determination.
13056              UNITED STATES v. JOHNSON
Cano, 456 F.3d at 1135-36 (relying heavily on out-of-circuit
authority). In United States v. Blanco, 466 F.3d 916 (10th Cir.
2006), for example, the Tenth Circuit approved the refusal to
move for the additional reduction because, on the defendant’s
motion, the government was forced to expend resources
reweighing drug evidence at an independent testing facility.
Id. at 918-19. The court held that this decision was neither
unconstitutional nor arbitrary because “[e]nsuring efficient
resource allocation is a legitimate government end and a
stated purpose of § 3E1.1(b).” Id. at 918; see also Moreno-
Trevino, 432 F.3d at 1186-87 (finding appropriate the govern-
ment’s refusal to file a § 3E1.1(b) motion where the defen-
dant, having timely pled guilty to illegal reentry after
deportation, indicated that he intended to again reenter the
country after his incarceration and removal, in violation of the
terms of his plea agreement and supervised release); United
States v. Sainz-Preciado, 566 F.3d 708, 715-16 (7th Cir.
2009) (“So while Sainz-Preciado’s early guilty plea spared the
expense of a trial, the government still had to prepare . . . tes-
timony and other evidence to prove the full scope of Sainz-
Preciado’s criminal conduct at the sentencing hearing. This
added burden to both the government and the court system
gave the government good reason (if it needed one) not to file
a § 3E1.1(b) motion.”).

   The Fifth Circuit has similarly addressed the issue before
us, rejecting virtually identical arguments by the defendant. In
United States v. Newson, the case upon which we relied in
Medina-Beltran, the defendant timely pled guilty to a drug
possession charge. 515 F.3d at 375. The government declined
to move for the discretionary one-level adjustment under
§ 3E1.1(b) “solely because [the defendant] would not accept
the appellate waiver provision in its proposed plea agree-
ment.” Id. at 377. The defendant appealed his sentence, argu-
ing that the government’s refusal was “irrational and punitive
and not based on a legitimate governmental purpose” because
the purpose of § 3E1.1(b) was strictly “to prevent a waste of
prosecutorial and judicial resources at the trial-court level.”
                       UNITED STATES v. JOHNSON                      13057
Id. The government countered that § 3E1.1(b) “encompass[es]
not only the expenditure of the Government’s time and effort
at the prejudgment stage but also in appellate or collateral-
review proceedings,” and that “conserving [governmental]
resources in post-judgment proceedings serves a legitimate
governmental interest.” Id. Applying the same standard that
we apply, the Fifth Circuit sided with the government. Rely-
ing on our decision in Espinoza-Cano, the court concluded
that “[t]he defendant’s refusal to waive his right to appeal is
a proper basis for the Government to decline to make such a
motion, as it is rationally related to the purpose of the rule and
is not based on an unconstitutional motive.” Id. at 378. We
think the reasoning of the Fifth Circuit is sound.8

   Johnson’s argument on appeal focuses almost exclusively
on the timeliness of the plea—and, not the nature of his condi-
tional guilty plea or the governmental interests at stake. This
  8
   The concurrence cites other non-circuit cases such as United States v.
Anzalone, 161 F.3d 1125 (8th Cir. 1998), and United States v. Wilson, 390
F.3d 1003 (7th Cir. 2004), to suggest that there is a competing view of
what constitutes arbitrariness. But Anzalone and Wilson, cases involving
the government’s refusal to file a § 5K1.1 substantial assistance motion,
are not inconsistent with our holding today. Determining whether a defen-
dant has materially assisted the prosecution of others and whether a defen-
dant has accepted responsibility in a sufficient manner are far different
inquiries. As we stated, ensuring efficient allocation of government
resources is plainly a legitimate government interest contemplated by
§ 3E1.1(b). Indeed, to a large extent, our colleague is creating disagree-
ment where, on careful reading, there is none.
   We further reject the concurrence’s “parade of horribles” as entirely
irrelevant to Johnson’s case. This line of reasoning, which presents scenar-
ios that bear no resemblance to the facts presented, is merely a strawman.
In reviewing the government’s refusal to file a § 3E1.1(b) motion, we have
described the analysis to be whether the decision was “rationally related
to any legitimate governmental purpose.” Espinoza-Cano, 456 F.3d at
1136. If it happens that prosecutors abuse their broad, but not limitless,
discretion under § 3E1.1(b) (or § 5K1.1), we can pass judgment on those
factual scenarios as they appear in the next case. We decide the appeal
now before us—not all hypothetical reasons the government could give for
refusing to file the requisite motion.
13058              UNITED STATES v. JOHNSON
position misses the mark, as it “ignores the principle that a
defendant’s fulfillment of the conditions for a motion for an
adjusted offense level is necessary, but does not mandate
relief.” Espinoza-Cano, 456 F.3d at 1136; see also Wade, 504
U.S. at 187 (“[A]lthough a showing of assistance is a neces-
sary condition for relief [under § 5K1.1], it is not a sufficient
one. The Government’s decision not to move may have been
based not on a failure to acknowledge or appreciate Wade’s
help, but simply on its rational assessment of the cost and
benefit that would flow from moving.”). In support, Johnson
heavily relies on United States v. Vance, 62 F.3d 1152 (9th
Cir. 1995), and other decisions by our court and other circuits
that considered a prior version of § 3E1.1 that materially dif-
fers from the current version applicable in this case.

   [13] Before April 2003, the decision to award the third-
level reduction for acceptance of responsibility was non-
discretionary and lay in the hands of the district court—a
“factual determination reviewed for clear error.” United States
v. Blanco-Gallegos, 188 F.3d 1072, 1076 (9th Cir. 1999).
Section 3E1.1(b) formerly read:

    If the defendant qualifies for a decrease under sub-
    section (a), the offense level determined prior to the
    operation of subsection (a) is level 16 or greater, and
    the defendant has assisted authorities in the investi-
    gation or prosecution of his own misconduct by tak-
    ing one or more of the following steps:

         (1) timely providing complete information
         to the government concerning his own
         involvement in the offense; or

         (2) timely notifying authorities of his inten-
         tion to enter a plea of guilty, thereby per-
         mitting the government to avoid preparing
         for trial and permitting the court to allocate
         its resources efficiently,
                       UNITED STATES v. JOHNSON                      13059
     decrease the offense level by 1 additional level.

U.S.S.G. § 3E1.1(b) (2002). Thus, when we decided Vance, a
defendant was entitled to “a third level reduction either for
providing information to the government regarding his own
involvement or by timely notifying the government of his
intent to plead guilty.” Espinoza-Cano, 456 F.3d at 1134. The
“key inquiry” under the old version of § 3E1.1(b) was simply
“whether the confession was complete and timely.” Blanco-
Gallegos, 188 F.3d at 1077.

   [14] The Prosecutorial Remedies and Other Tools to End
the Exploitation of Children Today Act of 2003 (“PROTECT
Act”), Pub. L. No. 108-21, § 401(g), 117 Stat. 650, 671-72
(2003), materially altered § 3E1.1(b).9 Notably, it made “the
third level reduction subject to the discretion of the govern-
ment, rather than mandatory, upon a timely plea of guilty.”
Espinoza-Cano, 456 F.3d at 1137. Further, the PROTECT Act
expressly inserted consideration of the government’s
   9
     Our colleague contends that “Vance interpreted language substantially
identical to that at issue here.” But, by all accounts, the 2003 PROTECT
Act marked a major change in the analysis of a defendant’s entitlement to
the third-level § 3E1.1(b) decrease. See, e.g., Sainz-Preciado, 566 F.3d at
715 (“We, along with every other circuit to consider the issue, have held
that the government motion is a necessary prerequisite to a § 3E1.1(b)
reduction. That rule reflects a 2003 congressional amendment to
§ 3E1.1(b) that added the ‘upon motion of the government’ language, indi-
cating Congress’s intent to leave third-point reductions to the govern-
ment’s discretion.” (internal citation omitted)); Beatty, 538 F.3d at 15 (“If
the government were required to move for the third-level reduction when
the defendant enters a timely plea, thereby saving the government the
expense of trial preparation, the amended language requiring that the gov-
ernment file a motion would be a nullity. Such a holding would effectively
reinstate the pre-2003 version of § 3E1.1 by rendering entitlement to the
motion automatic if the defendant received the reduction under § 3E1.1(a)
and entered a ‘timely’ plea.”). The concurrence, somewhat inexplicably,
dismisses as inapposite the two decisions on point from our circuit, which
follow our sister circuits’ view of § 3E1.1(b), in favor of pre-2003 case
law interpreting a materially different version of the Guidelines provision.
The law has changed.
13060                 UNITED STATES v. JOHNSON
resources into the calculus. Under the post-PROTECT Act
version of § 3E1.1(b), the government must file a motion stat-
ing that the defendant’s timely notification of an intent to
plead guilty not only “permitt[ed] the government to avoid
preparing for trial,” but also “permitt[ed] the government and
the court to allocate their resources efficiently.” U.S.S.G.
§ 3E1.1(b) (2006) (emphasis added). Both of these changes
are significant. As a result, Vance does not govern here.10
Simply put, Johnson, by relying exclusively on pre-
PROTECT Act authorities, fails to account for the govern-
ment’s broad discretion whether to file a § 3E1.1(b) motion,
which we have confirmed in Espinoza-Cano and Medina-
Beltran.11

   [15] We acknowledge that the government’s broad discre-
tion to move for the third-level reduction under § 3E1.1(b)
might in some cases place defendants in a dilemma. See
Blanco, 466 F.3d at 919 (“[The defendant] enjoyed the right
to insist on reweighing the drugs, and he could exercise that
right in one of two ways: by reweighing the drugs or by waiv-
ing that right in exchange for a lower sentence.”); see gener-
ally United States v. Ensminger, 567 F.3d 587, 593 (9th Cir.
2009) (noting the defendant’s informed choice to forgo avail-
  10
      In Vance, we held that the defendant’s filing of a suppression motion
could not serve as a bar to receiving the third reduction point where the
defendant timely notified the prosecution of his intent to plead guilty. 62
F.3d at 1157. Given that the issue here relates to the expenditure of gov-
ernmental resources on appeal, Vance is inapposite for this reason as well.
While Vance remains authoritative in other respects, it certainly does not
demonstrate, as Johnson argues, that the government acted arbitrarily in
refusing to file a § 3E1.1(b) motion in the instant case.
   11
      Johnson also argues that the government’s refusal was arbitrary
because it has not taken the same position in other criminal cases involv-
ing conditional pleas within the District of Alaska. This argument lacks
merit. To not be “arbitrary,” the government need only demonstrate that
its decision was rationally related to a legitimate end. Espinoza-Cano, 456
F.3d at 1136. One of the purposes of the PROTECT Act amendments was
to allow the government to determine when the third-level reduction is
appropriate on a case-by-case basis.
                       UNITED STATES v. JOHNSON                       13061
able defense strategies by entering a guilty plea). But, John-
son has no legal entitlement to the discretionary one-level
reduction for acceptance of responsibility. As we have stated
time and again, “there is nothing improper about the govern-
ment providing an incentive to plea bargain.” Espinoza-Cano,
456 F.3d at 1138; see also United States v. Baldrich, 471 F.3d
1110, 1115 (9th Cir. 2006) (rejecting challenge that “section
3E1.1(b) is unconstitutional because it penalizes defendants
for exercising their constitutional right to go to trial”).12 John-
son elected to bring his suppression argument to us, delaying
finality of this criminal prosecution and causing the govern-
ment to allocate and expend substantial additional resources
to defend this appeal. The district court correctly concluded
that the government acted within its discretion when it refused
to file a § 3E1.1(b) motion.

                                     IV

   The officers had reasonable suspicion to conduct an investi-
gatory stop and frisk of Johnson, and, as a result, the district
court did not err in denying his motion to suppress. The dis-
trict court also properly declined Johnson’s request for the
discretionary one-level adjustment for acceptance of responsi-
bility under § 3E1.1(b).

   AFFIRMED.




   12
      We further point out that “it is well settled that there is no constitu-
tional right to an appeal.” Abney v. United States, 431 U.S. 651, 656
(1977); accord United States v. Sudthisa-Ard, 17 F.3d 1205, 1206 (9th Cir.
1994). “[T]he right to a judgment from more than one court is a matter of
grace and not a necessary ingredient of justice.” Cobbledick v. United
States, 309 U.S. 323, 325 (1940).
13062                   UNITED STATES v. JOHNSON
MILAN D. SMITH, JR., Circuit Judge, dissenting in part, but
concurring in the judgment:

   I agree that the district court correctly denied Johnson’s
suppression motion, and ultimately, that the district court did
not abuse its discretion in declining to award Johnson a third-
level adjustment for acceptance of responsibility. However, I
write separately because I believe that my colleagues in the
majority—by misreading the language of § 3E1.1(b), by mis-
judging the continuing validity of our controlling precedent in
United States v. Vance, 62 F.3d 1152 (9th Cir. 1995), and by
relying too heavily on largely inapposite case law—
unreasonably expand the scope of the government’s discretion
under United States Sentencing Guidelines § 3E1.1(b). In so
doing, the majority risks giving federal prosecutors undue
license to penalize defendants for forcing the government to
expend resources, even if the government’s justification for
doing so is entirely unrelated to the stated objectives of the
Sentencing Guidelines.

   I believe that the majority unnecessarily conflates what, in
my view, should be two distinct inquiries: (1) the substantive
prerequisites for a third-level adjustment under § 3E1.1(b);
and (2) the scope of government discretion under § 3E1.1(b).
Specifically, I would first determine the meaning of
§ 3E1.1(b) and whether the defendant became eligible for the
adjustment by fulfilling the substantive requirements of
§ 3E1.1(b). Then, I would gauge whether the government’s
denial of the adjustment was rationally related to the identi-
fied legitimate government interest.1 We cannot effectively
   1
     I note that at the heart of this case is the inherent difficulty of applying
rational basis review to government motions for sentencing range adjust-
ments under the Guidelines. In other fields employing rational basis
review, specifically due process and equal protection law, a court judges
the legitimacy of the government’s conduct by that court’s own notion of
what constitutes a legitimate governmental objective. See Allied Stores of
Ohio, Inc. v. Bowers, 358 U.S. 522, 528 (1959) (holding that regulation
                        UNITED STATES v. JOHNSON                        13063
determine whether the government’s basis for denying the
adjustment serves a legitimate government interest unless we
first know what that legitimate government interest is.2

   Using the approach described above, I conclude—contrary
to the majority’s effective holding—that the government’s
discretion over its basis for denying an adjustment under
§ 3E1.1(b), while broad, must nonetheless be closely tied to
the plain language of the guideline.

I.    The Meaning of Sentencing Guideline § 3E1.1(b)

     A.   The Guideline’s Language

   We first consider the language of § 3E1.1(b) and whether
Johnson fulfilled his obligations under that section to become
eligible for the adjustment. As the majority notes, § 3E1.1(b)
states in relevant part that the government’s motion should be
based on its assertion that the defendant

will withstand minimal scrutiny “if any state of facts reasonably can be
conceived that would sustain it”); Madden v. Kentucky, 309 U.S. 83, 88
(1940) (noting that Fourteenth Amendment plaintiff must “negative every
conceivable basis” for the law under traditional rational-basis review);
Andrew Koppelman, Romer v. Evans and Invidious Intent, 6 WM. &
MARY BILL RTS. J. 89, 114-15 (1998). In sentencing cases like this one,
however, the pertinent guideline expressly articulates the government
interest at issue. As a result, it is initially unclear in this instance whether
government action passes muster only if it is related to the government
objective stated in the guidelines, or whether it fails only if it has no “con-
ceivable basis,” i.e., it is permissible so long as it relates to any legitimate
government objective—even if that objective is completely untethered
from the guideline’s stated objective. I further address this issue in Part II
below and conclude that the former is the proper standard.
   2
     The majority criticizes this approach, implying that we must undertake
the § 3E1.1(b) analysis by determining the arbitrariness of the govern-
ment’s application of the guideline without determining what that guide-
line means. To me, this is illogical.
13064                  UNITED STATES v. JOHNSON
      assisted authorities in the investigation or prosecu-
      tion of his own misconduct by timely notifying
      authorities of his intention to enter a plea of guilty,
      thereby permitting the government to avoid prepar-
      ing for trial and permitting the government and the
      court to allocate their resources efficiently.

(Emphases added.) While the trial preparation phrase and the
resource allocation phrase are stated in the conjunctive, the
term “thereby” applies to both phrases.3

   The word “thereby” is defined as “by that means.”4 Here,
“that” means “timely notifying authorities of . . . intention to
enter a plea of guilty.” Thus, the section contemplates that the
means by which the defendant both saves trial preparation and
permits efficient resource allocation, is through a timely
guilty plea. Stated differently, to be eligible for the adjust-
ment, the defendant must have “assisted authorities in the
investigation or prosecution of his own misconduct” by:

      •   “permitting the government to avoid preparing
          for trial” by the means of “timely notifying
          authorities of his intention to enter a plea of
          guilty” and

      •   “permitting the government and the court to allo-
          cate their resources efficiently” by the means of
          “timely notifying authorities of his intention to
          enter a plea of guilty.“

In this case, Johnson did both, which is why he was eligible
  3
     The resource allocation phrase cannot be read as a conjunction with the
timely notification phrase because, were the former intended as such, one
would expect the word “by” to proceed “permitting the government and
the court,” as it does with “timely notifying.”
   4
     WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 2372 (2002)
(emphasis added).
                     UNITED STATES v. JOHNSON                    13065
for the third-level adjustment: the government conceded in its
sentencing memorandum that Johnson had “entered a plea of
guilty in a timely manner, admitted possession of a firearm as
a felon, and saved the government the burden and expense of
trial.” In addition, the district court stated on the record: “I
don’t think there’s any dispute in the record [that Johnson’s
plea was timely and that the government expended no
resources in preparing for trial].”

   Though the majority does not fully explain its reasoning, its
analysis implies that § 3E1.1(b) should be read so as to render
a defendant ineligible for the adjustment where he either goes
to trial or causes the government to expend resources.5 That
interpretation misreads the guideline’s plain language. In my
view, the result of the majority’s approach overlooks the
effect of the notice of intent to plead guilty prong of the
guideline and the term “thereby.”

   Moreover, such a reading could produce absurd results; it
could allow the government to cite any defendant-caused gov-
ernment resource expenditure whatsoever, no matter how
unrelated to the guilty plea. My concerns are not merely
hypothetical; in previous instances, the government or court
has based denials of an adjustment under various Guidelines
on, for example: the defendant’s having filed a civil lawsuit
against the government, United States v. Wilson, 390 F.3d
1003, 1008, 1010-11 (7th Cir. 2004) (government declining to
file motion for adjustment under Federal Rule of Criminal
Procedure Rule 35(b) or Sentencing Guidelines § 5K1.1 for
substantial assistance); the defendant’s having requesting a
suppression hearing, Vance, 62 F.3d at 1157; and the defen-
dant’s suspected continuing drug use, United States v. Anza-
  5
   The majority does suggest that the term “prosecution,” U.S.S.G.
§ 3E1.1(b), encompasses “the entirety of the criminal proceedings in a
particular case until judgment is final and certain.” Maj. Op. at 13053.
This reading, however, is foreclosed by Vance, 62 F.3d at 1157. See Part
I.B. below.
13066                   UNITED STATES v. JOHNSON
lone, 148 F.3d 940, 941 (8th Cir. 1998) (also under § 5K1.1),
vacated & reh’g en banc granted, 148 F.3d 940, reinstated &
reh’g en banc denied, 161 F.3d 1125 (8th Cir. 1998).6

  B.     Section 3E1.1(b) as Interpreted in This Circuit

   This semantic exercise is unnecessary, however, because
we previously interpreted § 3E1.1(b)’s substantive basis for
the third-level adjustment in Vance, 62 F.3d at 1157. I believe
that Vance still governs that substantive basis, and I disagree
with the majority’s conclusion that Vance has no applicability
in this case. In Vance, we held that a defendant who promptly
pled guilty after losing a suppression motion—but reserved
the right to appeal the motion’s denial—was nonetheless enti-
tled to a full three-level § 3E1.1 adjustment for acceptance of
responsibility. Id. The district court ruled that, among other
things, the defendant’s filing a suppression motion rendered
him unsuitable for a § 3E1.1(b)(2)7 reduction. In rejecting that
view, we clarified that only trial preparation may be consid-
ered in determining suitability for the adjustment. Id. In so
holding, we explicitly observed that “[t]he guidelines do not
mean ‘motions’ where they say ‘trial.’ ” Id. (citing United
States v. Kimple, 27 F.3d 1409, 1414-15 (9th Cir. 1994); see
also United States v. Price, 409 F.3d 436, 443-44 (D.C. Cir.
2005) (holding that, although the government was forced to
spend resources on a suppression hearing, because “the Gov-
ernment [did] not dispute that it never had to prepare for
trial[,] . . . under the plain language of U.S.S.G. § 3E1.1(b)(2)
[(2001)], [the defendant] was entitled to a third-level reduc-
   6
     The majority labels these examples a “parade of horribles” and dis-
misses them as irrelevant to this case. Maj. Op. at 13057 n.8. But they are
quite relevant; they demonstrate the potential Guidelines flouting that
occurs where courts, like the majority here, allow the government to
ignore the plain language of the Guidelines in declining to move for sen-
tencing adjustments.
   7
     Section 3E1.1(b)(2) is part of the predecessor to the current Accep-
tance of Responsibility Guideline. As shown below, though it is formatted
slightly differently, it is substantively similar for the purposes of this case.
                   UNITED STATES v. JOHNSON               13067
tion in his offense level”). Thus, Vance clarified that only the
defendant’s trial resource-saving timely plea may be consid-
ered in determining the defendant’s suitability for the third-
level adjustment.

   The majority insists that Vance is no longer applicable in
light of the PROTECT Act, because that Act materially
changed some of the language of § 3E1.1(b). I disagree. For
purposes of this case, Vance interpreted language substan-
tially identical to that at issue here. See United States v.
Espinoza-Cano, 456 F.3d 1126, 1137 (9th Cir. 2006) (noting
that, except for giving the government discretion over the
motion, “the language of section 3E1.1(b) tracks the former
[pre-PROTECT Act] language of section 3E1.1(b)(2)”). The
PROTECT Act amended § 3E1.1(b) in the following way
(with the double underscore indicating additions and the
strikethrough indicating deletions):

       (b) If the defendant qualifies for a decrease under
    subsection (a), the offense level determined prior to
    the operation of subsection (a) is level 16 or greater,
    and upon motion of the government stating that the
    defendant has assisted authorities in the investigation
    or prosecution of his own misconduct by taking one
    or more of the following steps: (1) timely providing
    complete information to the government concerning
    his own involvement in the offense; or (2) timely
    notifying authorities of his intention to enter a plea
    of guilty, thereby permitting the government to avoid
    preparing for trial and permitting the government
    and the court to allocate its their resources effi-
    ciently, decrease the offense level by 1 additional
    level.

   Thus, the PROTECT Act amended § 3E1.1, but only by:
(1) changing who initiates the adjustment and giving that
decision deference; (2) removing the defendant’s provision of
information as a basis for receiving the adjustment; and (3)
13068                  UNITED STATES v. JOHNSON
adding the consideration of government resources in prepar-
ing for trial. See id. The substantive basis for the decision to
award the adjustment for a timely guilty plea remains essen-
tially the same: the defendant is eligible for the adjustment,
provided he “timely notif[ied] authorities of his intention to
enter a plea of guilty, thereby permitting the government to
avoid preparing for trial” and thus “permitting [the govern-
ment and] the court to allocate [their] resources efficiently.”
U.S.S.G. § 3E1.1(b) (bracketed portions denoting PROTECT
Act changes). I am not persuaded that Congress—in amend-
ing the guideline, but leaving unchanged the “timely . . . plea
of guilty” and “preparing for trial” language—intended the
amended guideline to allow consideration of conduct unre-
lated to guilty pleas, such as appeals or motions to suppress
(the latter, a basis specifically rejected in Vance and Price as
a valid reason for denying the third-level adjustment). If Con-
gress intended that interpretation, it could easily have
included such language or removed the references to “timely
. . . plea of guilty” and “preparing for trial.”8

   Accordingly, while the PROTECT Act undoubtedly abro-
gated Vance’s holding as to who or what entity initiates the
process for the third-point adjustment and the deference
afforded that decision, its holding as to the substantive basis
for the adjustment remains good law and controls our analysis
of this issue, i.e., whether Johnson was eligible for the adjust-
ment in the first place. See Espinoza-Cano, 456 F.3d at 1137.
By erroneously disregarding Vance altogether, the majority
  8
    The majority suggests that this approach renders the changes created
by the PROTECT Act “superfluous.” Maj. Op. at 13054-55 n.9 (citing
United States v. Beatty, 538 F.3d 8, 15 (1st Cir. 2008)). Not so; there is
no dispute, for instance, that the government is now the sole arbiter of
whether the defendant’s guilty plea was sufficiently timely to prevent it
from expending trial resources. Indeed, it is the majority’s approach which
effectively renders superfluous the “timely . . . plea of guilty” and “prepar-
ing for trial” portion of the post-PROTECT Act § 3E1.1(b), by permitting
an adjustment withholding based on a reason unrelated to the guideline’s
stated purpose.
                    UNITED STATES v. JOHNSON                 13069
leaves us with nothing against which to measure the arbitrari-
ness of the government’s action.

   As stated, Vance’s holding on this issue is clear: the only
“resources” that may be considered in gauging the defen-
dant’s satisfaction of the guideline are those resources
devoted to trial preparation. 62 F.2d at 1157 (“[A] plea suffi-
ciently in advance of trial so that the government can avoid
trial preparation and the court can allocate its resources effi-
ciently is sufficiently timely for all three points.”); id. (“The
guidelines do not mean ‘motions’ where they say ‘trial’ at
§ 3E1.1(b)(2).” (citing Kimple, 27 F.3d at 1414-15)). It is
clear, therefore, that Johnson was eligible for the adjustment.

II.   Arbitrariness

   For the reasons noted, Johnson’s plea satisfied the pertinent
plain terms of § 3E1.1(b), and he was therefore eligible for a
third-level adjustment. Under the pre-2003 Sentencing Guide-
lines scheme, this determination would have ended our
inquiry, and Johnson would have been entitled to the down-
ward adjustment. Cf. United States v. Blanco-Gallegos, 188
F.3d 1072, 1077 (9th Cir. 1999). However, as noted, the PRO-
TECT Act added an additional predicate to a defendant’s ben-
efitting from § 3E1.1(b) by amending the Sentencing
Guidelines to give the government the “power,” not the
“duty,” United States v. Moreno-Trevino, 432 F.3d 1181,
1186 (10th Cir. 2005) (quoting Wade v. United States, 504
U.S. 181, 185 (1992)), in the exercise of “broad discretion to
determine when the [§ 3E1.1(b)] adjustment is appropriate.”
Espinoza-Cano, 456 F.3d at 1137-38. The government’s deci-
sion must not be arbitrary, i.e., not rationally related to a legit-
imate government purpose, or based on a unconstitutional
motive. United States v. Newson, 515 F.3d 374, 378 (5th Cir.
2008) (citing Wade, 504 U.S. at 186-87).

  In this case, the government conceded, and the district
court agreed, that Johnson had timely pled guilty and saved
13070                  UNITED STATES v. JOHNSON
the government the expense of trial preparation. Thus, the
only remaining question is whether the government abused its
discretion by denying Johnson the adjustment. On this issue,
I agree with the majority that, post PROTECT Act, the gov-
ernment enjoys discretion in moving for the third-level adjust-
ment under § 3E1.1(b). I disagree with the majority as to the
scope of that discretion.

  While we have not yet clearly resolved this issue, cf. United
States v. Medina-Beltran, 542 F.3d 729 (9th Cir. 2008) (per
curiam);9 Espinoza-Cano, 456 F.3d 1126,10 other circuits have
  9
    In Medina-Beltran, the court determined that, “[u]nder these circum-
stances,” the government’s decision not to move for a § 3E1.1(b) reduc-
tion was not arbitrary. Id. at 731. In so concluding, however, the Medina-
Beltran panel provided no analysis and cited only an out-of-circuit deci-
sion as authority. Id. (citing Newson, 515 F.3d at 378-79). Other than stat-
ing that the defendant objected to his sentencing enhancement and rejected
the government’s proposed appeal waiver, id. at 731, the case provides no
factual background. Therefore, we do not know the nature of “th[ose] cir-
cumstances,” id., or whether Medina-Beltran’s plea was “timely” as
required by § 3E1.1(b). We can only speculate whether the government
expended resources on trial preparation and whether—unlike here—the
defendant failed to meet the relevant terms of § 3E1.1(b). Curiously,
Medina-Beltran is structured more like a memorandum disposition than an
opinion, and, consistent with that structure, it does not purport to state any
rule of law. Though the majority accuses me of “bald speculation” as to
the lack of pertinent facts in that case, Maj. Op. at 13054-55 n.6, I intend
no offense to the authoring panel when I observe that it is critical for an
opinion to provide the pertinent facts of the case; the reader should not be
required to speculate, as the majority does here, about what those facts
might include. For this reason—though Medina-Beltran is undoubtedly a
published opinion and controlling in this circuit—its lack of factual back-
ground and cursory treatment of the § 3E1.1(b) issue prevent us from
determining precisely what it controls. Accordingly, Medina-Beltran can-
not be read to establish a per se rule of nonarbitrariness where the govern-
ment declines to move for a § 3E1.1(b) adjustment because the defendant
appeals his conviction. Cf. United States v. Johnson, 256 F.3d 895, 915
(9th Cir. 2001) (en banc) (Kozinski, J., concurring) (“Where it is clear that
a statement is made casually and without analysis, . . . it may be appropri-
ate to re-visit the issue in a later case[,]” provided that “the later panel is
convinced that the earlier panel did not make a deliberate decision to adopt
the rule of law it announced.”).
   10
      Espinoza-Cano is also largely inapposite. Unlike Johnson, Espinoza-
                       UNITED STATES v. JOHNSON                      13071
considered the post-PROTECT Act application of § 3E1.1(b)
and the analogous application of § 5K1.1, i.e., treatment of
the government’s discretion in deciding whether to move for
a downward adjustment for a defendant’s substantial assis-
tance.11 The Fifth and Tenth Circuits have concluded, as artic-
ulated by the Tenth Circuit in United States v. Blanco, that
“[e]nsuring efficient resource allocation is a legitimate gov-
ernment end and a stated purpose of § 3E1.1(b),” 466 F.3d
916, 918 (10th Cir. 2006), and held nonarbitrary a govern-
mental refusal to move for a one-level reduction under
§ 3E1.1(b) when the United States is required to expend addi-
tional resources as a result of, for instance, a defendant’s
request to reweigh drug evidence or refusal to waive appeal.
Id.; Newson, 515 F.3d at 378.

  The majority finds support for its conclusion in the preced-
ing cases, as well as in two largely inapposite12 Ninth Circuit
cases, Medina-Beltran, 542 F.3d 729, and Espinoza-Cano,
456 F.3d 1126. But the majority fails to mention that at least
one other circuit takes a different approach. See Anzalone,
148 F.3d at 941. In Anzalone, the Eighth Circuit stated that,
where the government bases its decision not to move for a
downward adjustment on reasons unrelated to whether the

Cano did not “timely notify[ ] authorities of his intention to enter a plea
of guilty,” U.S.S.G. § 3E1.1(b); indeed, he never pled guilty at all. 456
F.3d at 1129. His conduct therefore did not meet the plain requirements
of § 3E1.1(b), and, as a result, it cannot reasonably be suggested that the
government abused its discretion in denying Espinoza-Cano a third-level
adjustment. Espinoza-Cano’s holding in this regard, therefore, should
have no bearing on this case.
   11
      As the majority notes, the government’s discretion under § 5K1.1 is
the same as under § 3E1.1(b). See Espinoza-Cano, 456 F.3d at 1136 (hold-
ing that “a prosecutor is afforded the same discretion to file an acceptance
of responsibility motion for a third level reduction under section 3E1.1(b)
as that afforded for the filing of a substantial assistance motion under sec-
tion 5K1.1”).
   12
      See notes 9 and 10.
13072              UNITED STATES v. JOHNSON
defendant fulfilled the facial requirements of the sentencing
guideline, its decision does not serve a legitimate government
interest. Id. (holding that government’s decision not to move
for § 5K1.1 substantial assistance departure may not be based
on “ ‘factors other than the substantial assistance provided by
the defendant’ ” (quoting United States v. Rounsavall, 128
F.3d 665, 669 (8th Cir. 1997)) where government refused to
file motion because it suspected that defendant, while provid-
ing assistance, had continued using illegal drugs). Thus, there
is no consensus among the circuits over whether the govern-
ment may cite a reason not based in the Guidelines’ language
in denying the relevant adjustment. Cf. also Wilson, 390 F.3d
at 1010 11 (holding that government’s refusal to file a Rule
35(b) or § 5K1.1 motion for substantial assistance was not
rationally related to a legitimate government interest where it
was based on defendant’s having threatened a lawsuit against
government which, the government argued, negated substan-
tial assistance by creating an adversarial relationship); id. at
1010 (holding civil suit justification was “so far afield from
the purpose of § 5K1.1 and Rule 35(b) as to be irrational”).

   While I am not entirely persuaded by the Eighth Circuit’s
approach, I am also uncomfortable with the majority’s
approach in this case. Though the majority purports to limit
its holding to whether the government is required to expend
resources on appeals, I believe that, by condoning the adjust-
ment denial based on the “legitimate government end” of “ef-
ficient resource allocation,” Maj. Op. at 13056 (citing Blanco,
466 F.3d at 918), the effect of the majority’s holding is much
broader. The holding significantly and unreasonably expands
the meaning of arbitrariness and “legitimate government
interest,” thereby giving the government near carte blanche to
deny a § 3E1.1(b) adjustment whenever the defendant’s con-
duct causes the government to expend any resources. To
allow the government to use § 3E1.1(b) to accomplish objec-
tives unrelated to the Guidelines’ plain language flouts both
the Guidelines and Congress’ intent. Such a result undermines
Congressional sentencing objectives by vitiating the Guide-
                   UNITED STATES v. JOHNSON                13073
lines’ purpose of encouraging defendants to timely plead
guilty and avoid trial: if the government can decline to move
for a § 3E1.1(b) adjustment for reasons unrelated to
§ 3E1.1(b)’s stated purpose, future guilty defendants will have
fewer incentives to timely plead guilty, since doing so would
entail surrendering a key right with no reasonable expectation
of a corresponding benefit.

   Nonetheless, having considered the relevant authority and
policy implications, I reluctantly conclude that, in this case,
the government’s denial of a third-level adjustment was not
arbitrary. Although Johnson’s plea permitted the government
to husband its resources at the trial level, Johnson’s unwilling-
ness to waive his appeal rights showed that he had not “ac-
cepted responsibility in a way that ensures the certainty of his
just punishment in a timely manner,” U.S.S.G. § 3E1.1 cmt.
background. Importantly, though his conditional guilty plea
was technically a notice of his “intention to enter a plea of
guilty” under the letter of the Guidelines, it did not fulfill the
spirit of § 3E1.1(b), as the conditional plea was arguably not
a true “guilty” plea as contemplated by § 3E1.1(b). I may
have concluded differently were I reviewing the issue under
the pre-PROTECT Act regime. But under our current stan-
dard, I believe that the government’s basis for its denial was
sufficiently tethered to the Guidelines to render that basis
rationally related to a legitimate government interest and non-
arbitrary. As a result, I concur in the judgment.
