                        RECOMMENDED FOR FULL-TEXT PUBLICATION
                             Pursuant to Sixth Circuit Rule 206
                                    File Name: 12a0173p.06

                UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT
                                  _________________


                                                X
                           Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                 -
                                                 -
                                                 -
                                                     No. 10-6454
          v.
                                                 ,
                                                  >
                                                 -
                         Defendant-Appellant. -
 MICHAEL ANTHONY COLLINS,
                                                N
                   Appeal from the United States District Court
                 for the Western District of Tennessee at Jackson.
             No. 1:09-cr-10007-001—J. Daniel Breen, District Judge.
                                   Argued: March 2, 2012
                            Decided and Filed: June 12, 2012
Before: MARTIN and MCKEAGUE, Circuit Judges; CALDWELL, District Judge.*

                                    _________________

                                         COUNSEL
ARGUED: William Joshua Morrow, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Memphis, Tennessee, for Appellant. James Powell, ASSISTANT
UNITED STATES ATTORNEY, Jackson, Tennessee, for Appellee. ON BRIEF:
William Joshua Morrow, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Memphis, Tennessee, for Appellant. James Powell, ASSISTANT UNITED STATES
ATTORNEY, Jackson, Tennessee, for Appellee.
                                    _________________

                                          OPINION
                                    _________________

        CALDWELL, District Judge. Defendant-Appellant Michael Anthony Collins
pleaded guilty to being a felon in possession of a firearm in violation of 18 U.S.C.
§ 922(g). He appeals the district court’s denial of his motion to suppress the gun and

        *
        The Honorable Karen K. Caldwell, United States District Judge for the Eastern District of
Kentucky, sitting by designation.


                                               1
No. 10-6454        United States v. Collins                                         Page 2


certain statements he made indicating the gun was his. He also appeals the district
court’s decision that the government did not act arbitrarily or unconstitutionally when
it failed to move for the additional one-level reduction in offense level for acceptance
of responsibility provided in § 3E1.1(b) of the United States Sentencing Guidelines
Manual. For the following reasons, we AFFIRM the district court’s judgment.

                                   I. Background

       Collins was a passenger in a Jeep that was pulled over for speeding in the early
morning hours of November 30, 2008. The police officers performing the traffic stop
ultimately searched the car and found a gun. In its opinion on Collins’ motion to
suppress, the district court found the following facts, none of which has been disputed
by the parties:

       At approximately 2:30 A.M. on November 30, 2008, Officer [Shaun]
       Gary, a patrolman with the Jackson, Tennessee Police Department, was
       "running stationary radar" in his patrol car on Highland Avenue in
       Jackson – meaning that he was using his radar gun inside of his parked
       police cruiser. The Jeep Cherokee in which the Defendant was a
       passenger passed Officer Gary, at which time he clocked the vehicle
       traveling fifty-five miles per hour in a forty-miles-per-hour zone. He
       initiated a traffic stop, and [Orlando] Whisnant – the driver of the Jeep
       – pulled over on a nearby side street. Neither Whisnant nor the
       Defendant owned the Jeep, which belonged to a mutual friend – Robert
       Smith – but they had borrowed it with Smith's permission.
               After pulling the Jeep over and making contact with the
       occupants, Gary returned to his police cruiser with Whisnant's driver's
       license and Collins's personal information. He was able to determine that
       there were no outstanding warrants on either individual, and that
       Whisnant's driver's license was valid. Because Whisnant admitted that
       he had been drinking earlier in the evening, the officer asked him to
       perform a field sobriety test, which Whisnant passed satisfactorily. Gary
       then issued him a citation for speeding. Throughout the course of these
       events, as many as four additional officers arrived on the scene to assist
       Gary. One of these officers, Officer [Antonio] Rhodes, identified
       Whisnant as someone who had a history of drug possession. Rhodes
       positioned himself at the rear of the passenger side of the Jeep while
       Gary conducted the field sobriety test on Whisnant, and from that
       vantage point, Rhodes observed that the Defendant made "a furtive
No. 10-6454        United States v. Collins                                           Page 3


       gesture reaching down toward the floorboard as if he was trying to
       retrieve something or conceal something."
               Whisnant accompanied Gary to his police car where the officer
       explained the citation to him. He then asked Whisnant for consent to
       search the Jeep, whereupon the latter replied that because the vehicle did
       not belong to him, he was not sure he could agree to the request. Gary
       assured him that because he was the driver, he had the right to consent,
       and as such, Whisnant responded, "Well, I guess you can search. There's
       nothing to hide.” After both Whisnant and Collins exited the Jeep, the
       officers searched it. During the search, Rhodes discovered a loaded
       .22 caliber handgun under the front passenger seat in the area where he
       previously had seen Collins gesturing. The officers then placed both men
       in custody and asked them to whom the handgun belonged. Both men
       replied that they "didn't know anything about it," to which Gary
       responded that he would have to take them both into custody and charge
       them with possession of the firearm. At that point, Collins said, "I'll take
       the charge," and he was retained in custody while Whisnant was allowed
       to leave. (Id.) The entire detention, from Gary's initiation of the traffic
       stop to his transportation of Collins to the police station, lasted
       approximately forty-nine minutes.
              Around 6 P.M. on November 30, 2008, Investigator Phillip
       Kemper of the Jackson Police Department interviewed the Defendant in
       the Madison County Jail. After Kemper read Collins his Miranda rights,
       the Defendant signed a waiver thereof. Kemper then wrote down the
       statement given by Collins, in which he admitted that the gun was his,
       and that he had bought it for protection. Collins then signed the
       statement, which Kemper also signed as a witness.

(R. 48, Opinion at 1-3) (record citations and footnote omitted).

       Collins was indicted for being a felon in possession of a firearm in violation of
18 U.S.C. § 922(g). He moved to suppress the gun, the statement he made to Officer
Gary at the scene of the traffic stop that he would “take the charge,” and the written
statement he signed after his interview with Investigator Kemper at the jail. After
conducting an evidentiary hearing, the district court denied the motion to suppress.
Collins pleaded guilty to the § 922(g) charge but reserved his right to appeal the district
court’s denial of the motion to suppress.

       Prior to sentencing, the government filed a notice stating that it would not move
for the additional one-level decrease in offense level applicable to defendants who
No. 10-6454        United States v. Collins                                        Page 4


demonstrate “acceptance of responsibility” as provided for in § 3E1.1(b) of the United
States Sentencing Guidelines Manual. At the sentencing hearing, the district court found
that the government’s failure to make the § 3E1.1(b) motion was not arbitrary or
unconstitutionally motivated. Thus, in calculating the applicable advisory Guidelines
range, the district court applied only the two-level decrease for acceptance of
responsibility provided for in § 3E1.1(a).

       The district court also found that Collins qualified as an armed career criminal
under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1), and U.S.S.G.
§ 4B1.4(a), meaning that Collins was subject to a minimum sentence of fifteen years.
The court determined that Collins’ advisory Guidelines range was 151 to 188 months
and sentenced him to 184 months’ imprisonment. Collins appeals the denial of his
motion to suppress and his sentence.

                                     II. Discussion

       A.      The motion to suppress

       In its opinion on the motion to suppress, the district court noted that, while
Collins had contested the reasonableness of the detention in his motion to suppress, his
counsel conceded that the detention was reasonable at the suppression hearing. Collins
agrees that he conceded before the district court that the detention was reasonable.
Nevertheless, on appeal, he argues that the detention was unreasonable and that,
therefore, the Court should find that Whisnant’s consent to search the Jeep was not valid.

       By conceding before the district court that the detention was reasonable, Collins
has waived any objection to the legality of the detention. “[W]aiver is the intentional
relinquishment or abandonment of a known right.” United States v. Olano, 507 U.S.
725, 733 (1993) (quotation marks and citation omitted). When a defendant raises an
argument by motion but then abandons the argument before the district court, the
defendant has waived the argument and this Court cannot review that issue even for
plain error. United States v. Denkins, 367 F.3d 537, 544 (6th Cir. 2004) (“[W]e have
held that this sort of abandonment of an issue raised by way of motion waives any right
No. 10-6454         United States v. Collins                                         Page 5


of appeal on that issue.”); United States v. Sheppard, 149 F.3d 458, 461 (6th Cir. 1998)
(“Sheppard did not forfeit his suppression argument; he waived the argument by
withdrawing his motion to suppress prior to trial. Accordingly, we are without
jurisdiction to consider the argument.”) (footnote omitted).

        Collins argues that the district court erred in finding that Whisnant’s consent to
search the Jeep was voluntary. Because Whisnant himself testified that he consented to
the search and never testified that his consent was coerced or otherwise illegally
obtained, the district court did not clearly err in finding that Whisnant’s consent to
search the Jeep was voluntary.

        Whether consent to search is voluntary is a question of fact. United States v.
Crowder, 62 F.3d 782, 787 (6th Cir.1995). Thus, a district court's finding of voluntary
consent will not be reversed unless it is clearly erroneous. United States v. Calhoun,
49 F.3d 231, 234 (6th Cir. 1995). This means the district court’s finding of voluntary
consent will not be reversed unless this Court has a “definite and firm conviction that
a mistake has been committed.” United States v. Worley, 193 F.3d 380, 384 (6th
Cir.1999) (quoting Anderson v. City of Bessemer City, 470 U.S. 564, 573 (1985)).

        The government had the burden before the district court of proving by “clear and
positive testimony” that Whisnant’s consent was voluntary.               United States v.
Beauchamp, 659 F.3d 560, 571 (6th Cir. 2011) (quoting United States v. Salvo, 133 F.3d
943, 953 (6th Cir. 1998)). Voluntariness is determined by examining the totality of the
circumstances, including the individual’s age, intelligence, and education; whether the
individual understands his right to refuse consent and his constitutional rights; the length
and nature of the detention and whether the police used any coercive or punishing
conduct, including “subtle forms of coercion that might flaw an individual’s judgment.”
Id. (quoting United States v. Watson, 423 U.S. 411, 424 (1976) (internal brackets
omitted)).

        At the suppression hearing, the district court noted that, while testifying,
Whisnant spoke well and understood the questions asked of him. In its written opinion
on the motion to suppress, the district court found no evidence that Officer Gary
No. 10-6454          United States v. Collins                                         Page 6


“pressured or attempted to coerce Whisnant into consenting; he merely advised the
driver that he had the ability to do so.” Further, the district court noted, “Whisnant
repeatedly said that he consented to the search, and never once indicated that the officer
forced him to acquiesce or that he would have refused consent but for the officer’s
coercive tactics.”

        Collins does not dispute these findings. He argues instead that a combination of
factors resulted in “subtle coercion” that caused Whisnant to consent to the search of the
car. Collins notes that Whisnant testified that he did not understand he could refuse to
consent to the search. Collins also points out that Officer Gary told Whisnant that he
was aware of Whisnant’s prior drug charge and that Officer Gary did not tell Whisnant
that Collins had the right to object to the search of the car. Collins also argues there was
an “overpowering police presence” at the scene.

        While the fact that Whisnant did not understand he could refuse consent to search
is a factor to consider in determining whether consent was voluntary, police do not have
to inform an individual of his right to refuse to consent to a search. Beauchamp,
659 F.3d at 472. Likewise, when requesting an individual’s consent to search a vehicle,
police are not required to inform the individual that others could object to the search.
Nor are police required to obtain the consent of all the occupants of a vehicle in order
to search it. United States v. Booker, 981 F.2d 289, 294 (7th Cir. 1992). In this case, the
alleged consenter himself testified repeatedly that he consented to the search and never
testified that he felt coerced into doing so by the factors cited by Collins or any by other
factors. Accordingly, the district court did not clearly err in finding that Whisnant’s
consent was valid.

        Collins argues that the district court erred in failing to suppress his statement that
he would “take the charge” for the gun found in the Jeep which was made before Collins
was advised of his rights as required under Miranda v. Arizona, 384 U.S. 436 (1966).
Because the statement was not made in response to an interrogation, however, the
district court correctly denied the motion to suppress it.
No. 10-6454        United States v. Collins                                         Page 7


       “Statements made by a defendant in response to interrogation while in police
custody are not admissible unless the defendant has first been apprized of the
constitutional right against self-incrimination and has validly waived this right.” United
States v. Cole, 315 F.3d 633, 636 (6th Cir. 2003) (citing Miranda, 384 U.S. at 478-79).
“[T]he term ‘interrogation’ under Miranda refers not only to express questioning, but
also to any words or actions on the part of the police (other than those normally attendant
to arrest and custody) that the police should know are reasonably likely to elicit an
incriminating response from the suspect.” Rhode Island v. Innis, 446 U.S. 291, 300-01
(1980). “On the other hand, ‘[v]olunteered statements of any kind are not barred by the
Fifth Amendment and their admissibility is not affected’ by the holding in Miranda.”
Cole, 315 F.3d at 636 (quoting Miranda, 384 U.S. at 478).

       The parties do not dispute that Collins was in custody at the time he stated “I’ll
take the charge” with regard to the gun discovered in the Jeep. Prior to making that
statement, he was not apprised of his rights as required by Miranda. The issue is
whether Officer Gary elicited Collins’ statement with words or actions that he should
have known were reasonably likely to elicit an incriminating response. Officer Gary
described the exchange as follows:

       Gary: Both of them initially stated they didn’t know anything about [the
             gun], at which time I advised them that that was fine, that they
             would both be taken into custody and charged.
       Q:    What happened then?
       Gary: At that time Mr. Collins said, I’ll take the charge.

       Collins argues that Officer Gary’s statement that he would take both men into
custody and charge them with possession of the gun was a “threat,” intended to elicit an
incriminating response. At the time Officer Gary made the statement, however, he had
probable cause to believe that either Whisnant or Collins – or both – possessed the gun.
It was discovered in the car that Whisnant was driving on the passenger side where
Collins was seated.

       Thus, the district court correctly determined that Officer Gary’s statement that
he would charge both men with possession of the gun was not a threat but a “factually
No. 10-6454        United States v. Collins                                        Page 8


accurate statement about the next step [Officer Gary] would take as part of the arrest
process.” An accurate statement made by an officer to an individual in custody
concerning the nature of the charges to be brought against the individual cannot
reasonably be expected to elicit an incriminating response. “[T]he Innis definition of
interrogation is not so broad as to capture within Miranda’s reach all declaratory
statements by police officers concerning the nature of the charges against the suspect and
the evidence relating to those charges.” United States v. Payne, 954 F.2d 199, 202 (4th
Cir. 1992). The district court correctly found that Collins’ statement that he would “take
the charge” for the gun was not made as the result of a custodial interrogation.

       Collins also argues that, if his pre-Miranda statement that he would “take the
charge” should be suppressed, then his post-Miranda statement to Officer Kemper
explicitly stating that he owned the gun should also be suppressed because it was tainted
by the earlier failure of the police to provide Miranda warnings. This argument fails in
light of the Court’s ruling on Collins’ pre-Miranda statement.

       B.      The Sentencing

       The district court concluded that Collins qualified as an armed career criminal
under § 4B1.4(a) of the United States Sentencing Guidelines Manual and the ACCA,
thus subjecting him to a minimum mandatory sentence of 180 months. In his brief on
appeal, Collins argued that his prior convictions set forth in the presentence report were
not committed “on occasions different from one another” as the statute requires.
18 U.S.C. § 924(e)(1). He conceded that, under United States v. Hill, 440 F.3d 292 (6th
Cir. 2006), the convictions would count separately. He argued, however, that the
Supreme Court implicitly overruled Hill in Begay v. United States, 553 U.S. 137 (2008).
This argument is foreclosed by United States v. Paige, 634 F.3d 871, 873 (6th Cir.)
(holding that Begay did not implicitly overrule Hill), cert. denied, 132 S.Ct. 206 (2011).

       Finally, Collins argues that the district court erred in finding that the
government’s refusal to move for a one-level reduction in offense level under § 3E1.1(b)
No. 10-6454           United States v. Collins                                                   Page 9


of the United States Sentencing Guidelines Manual was not arbitrary.1 The government
argues it did not make the § 3E1.1(b) motion because, before Collins pleaded guilty, he
required the government to litigate his motion to suppress. This reason bears a rational
relation to the legitimate government interest in the efficient allocation of government
resources. Accordingly, the district court did not err in finding the decision was not
arbitrary.

         The current version of § 3E1.1 is the same as the version that the district court
used for Collins’ sentencing. Subsection (a) of the provision provides for a two-level
reduction in the offense level of a crime if the defendant “clearly demonstrates
acceptance of responsibility.” U.S. Sentencing Guidelines Manual § 3E1.1(a) (2011).
Collins received this reduction at sentencing. Subsection (b) of § 3E1.1 provides for an
additional one-level decrease in the offense level if the defendant qualifies for a decrease
under subsection (a) and the defendant’s offense level is level 16 or greater. U.S.
Sentencing Guidelines Manual § 3E1.1(b) (2011). Unlike the two-level reduction
provided for in subsection (a), however, the one-level reduction in subsection (b) is
permitted only if the government moves for it in a motion stating that “the defendant has
assisted authorities in the investigation or prosecution of his own misconduct by 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 their resources efficiently . . . . ” U.S. Sentencing Guidelines Manual § 3E1.1(b)
(2011)(emphasis added).

         The requirement that the government move for the additional one-level reduction
was put in place by the Prosecutorial Remedies and Tools Against the Exploitation of
Children Today Act of 2003 (“PROTECT Act”). Pub. L. No. 108-21, § 401(g),
117 Stat. 650, 671-72 (2003). Prior to the PROTECT Act, the district judge decided
whether to grant the additional one-level decrease.                   The discretion granted the


         1
          Had the district court awarded Collins the additional one-level reduction in offense level, his
applicable advisory Guidelines range would have been 135 to 168 months. Without the additional one-
level decrease, Collins’ applicable Guidelines range was 151 to 188 months. No matter the applicable
Guidelines range, however, Collins’ minimum sentence was 180 months because he qualified as an armed
career criminal. The district court ultimately sentenced Collins to 184 months.
No. 10-6454         United States v. Collins                                        Page 10


government under the provision is subject only to the limitation that the government’s
refusal to file a § 3E1.1(b) motion cannot be based on a “constitutionally impermissible
factor” and cannot be arbitrary. United States v. Coleman, 627 F.3d 205, 215 (6th Cir.
2010), cert. denied, 131 S.Ct. 2473 (2011). This means that the prosecutor’s decision
must bear a rational relation to a legitimate government end and must not be based on
factors such as religion, sex, or race. United States v. Lapsins, 570 F.3d 758, 769 (6th
Cir. 2009) (citing Wade v. United States, 504 U.S. 181, 186-87 (1992)). The defendant
must present “objective evidence of an improper motive or arbitrary action” to overcome
the government’s decision not to file a § 3E1.1(b) motion. Id. (citing United States v.
Espinoza-Cano, 456 F.3d 1126, 1138 (9th Cir. 2006)).

        The government did not move for the additional one-level reduction provided for
in § 3E1.1(b). In arguing that the government’s refusal to do so was arbitrary or based
on a constitutionally impermissible factor, Collins first argues that the United States
Attorney’s Office for the Western District of Tennessee has a policy of withholding a
§ 3E1.1(b) motion when a defendant files a motion to suppress evidence. The Court
need not address this issue because, whether such a policy existed during the relevant
time period or not, the government also argues that, in this particular case, it did not file
the § 3E1.1(b) motion because preparation for the suppression hearing was tantamount
to preparing for trial.

        The government does not dispute that Collins demonstrated “acceptance of
responsibility” as § 3E1.1(b) requires. Instead, the government argues that it did not file
the § 3E1.1(b) motion because the defendant’s guilty plea, which came after his motion
to suppress, did not permit the government to allocate its resources efficiently as the
provision also requires. In this way, this case is distinguishable from Lapsins and
Coleman. In those cases, the government justified its failure to file a § 3E1.1(b) motion
because, although the defendant in each case had at least conditionally pleaded guilty,
the government argued the defendant had not truly demonstrated an acceptance of
responsibility. Lapsins, 570 F.3d at 770; Coleman, 627 F.3d at 215; see also United
States v. Howell, 421 F. App’x 565, 567 (6th Cir. 2011).
No. 10-6454          United States v. Collins                                          Page 11


        This Court has not directly addressed the issue of whether the government can
withhold a     § 3E1.1(b) motion where it is undisputed that the defendant has
demonstrated “acceptance of responsibility for his offense” as the provision requires and
there is no evidence that the government was required to prepare for trial. The Second
and Fourth Circuits have held that the only legitimate government interest recognized
in § 3E1.1(b) is the government’s interest in avoiding a trial and that, if the
government’s reason for withholding the motion is not related to that interest, it is
invalid. See United States v. Divens, 650 F.3d 343 (4th Cir. 2011); United States v. Lee,
653 F.3d 170 (2d Cir. 2011).

        In Divens, the government refused to make a § 3E1.1(b) motion because,
although the defendant pleaded guilty, he would not waive certain rights to appeal and
to collaterally attack the judgment.        The government argued that its reason for
withholding the motion was “‘rationally related to the purposes of the guidelines’
because it allowed the Government to avoid defense of ‘a complete appeal’ and ‘allocate
its resources to other matters.’” Divens, 650 F.3d at 344. The Fourth Circuit disagreed,
stating that § 3E1.1(b) “simply does not require that a defendant provide the prosecution
with the type of assistance that might reduce the ‘expense and uncertainty’ attendant to
an appeal.” Id. at 348. Instead, “§ 3E1.1(b) provides that a defendant earns an
additional one-level reduction by providing the government one specific form of
assistance, i.e., by ‘timely notifying authorities of his intention to enter a plea of guilty.’”
Id. “It does not permit the Government to withhold a motion for a one-level reduction
because the defendant has declined to perform some other act to assist the Government.”
Id.

        In Lee, the government withheld the § 3E1.1(b) motion because the defendant
made objections to his presentence report which required a Fatico hearing. The Second
Circuit viewed the plain language of the provision as referring “only to the prosecution
resources saved when the defendant’s timely guilty plea ‘permit[s] the government to
avoid preparing for trial.’” Id. at 174 (quoting U.S.S.G. § 3E1.1(b)). The court further
noted that the Application Notes to the provision did not refer to resources saved by
No. 10-6454                United States v. Collins                                                  Page 12


avoiding preparation for any proceeding other than a trial. Id. Thus, the court held, the
government’s refusal to make the motion because it had to prepare for a Fatico hearing
was unlawful. Id. at 173.

          The problem with this interpretation is that it fails to take into account the
amended language of § 3E1.1(b). It is true that the former and current versions of the
provision explicitly identify a government interest in avoiding preparing for trial.2 The
amended version, however, also explicitly identifies a broader government interest in
allocating its resources efficiently. The Divens court recognized this in a footnote but
determined that, given that the remainder of the language and the commentary’s
exclusive focus on trial preparation, the term “resources” in § 3E1.1(b) “most naturally
refers to the Government’s trial resources.” 650 F.3d at 349 n.3 (emphasis added).

          This interpretation leaves the language added by the PROTECT Act essentially
meaningless, violating the fundamental rule of statutory construction that “we must give
effect to every word of a statute wherever possible.” Leocal v. Ashcroft, 543 U.S. 1, 12
(2004). The provision does not limit the reference to the government’s resources to trial
resources and this Court will not add language to the provision that would so limit it.
Hoge v. Honda of America Mfg., Inc., 384 F.3d 238, 246-47 (6th Cir. 2004) (“[C]ourts
have a duty to refrain from reading a phrase into a statute when Congress has left it
out.”).


          2
              The pre-PROTECT Act version of §3E1.1 provided as follows:
          (a)        If the defendant clearly demonstrates acceptance of responsibility for his
                     offense, decrease the offense level by 2 levels.
          (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
                     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 court to allocate its resources efficiently,
          decrease the offense level by 1 additional level.
U.S. Sentencing Guidelines Manual § 3E1.1(b) (2002).
No. 10-6454        United States v. Collins                                       Page 13


       As noted by the Ninth Circuit in United States v. Johnson, “the PROTECT Act
expressly inserted consideration of the government’s resources into the calculus.”
581 F.3d 994, 1006 (9th Cir. 2009). Under the amended language, “the government
must file a motion stating 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.’” Id.

       In Johnson, the court held that the government could properly withhold a
§ 3E1.1(b) motion where the defendant entered a conditional guilty plea reserving his
right to appeal the court’s denial of his suppression motion. The withholding of the
motion was proper because “[a]voiding the expenditure of additional resources in
anticipation of and defending against an appeal is a legitimate government interest.” Id.
at 1003. The First, Third, Fifth, and Tenth Circuits have also found that interests other
than avoiding preparing for trial can justify the government’s refusal to make a
§ 3E1.1(b) motion. See United States v. Newson, 515 F.3d 374, 378 (5th Cir. 2008)
(holding that the government’s refusal to make § 3E1.1(b) motion solely because the
defendant would not accept an appellate waiver provision in a plea agreement is
rationally related to purpose of the rule and not based on an unconstitutional motive);
United States v. Beatty, 538 F.3d 8, 15-16 (1st Cir. 2008) (rejecting the defendant’s
argument that the only legitimate end that the government may consider under
§ 3E1.1(b) is the avoidance of trial preparation and upholding the government’s refusal
to make § 3E1.1(b) motion when the defendant contested drug weights and whether the
drug was crack cocaine); United States v. Delaurier, 237 F. App’x 996, 998 (5th Cir.
2007) (holding that the district court did not err in denying the defendant the third point
for acceptance of responsibility where “the government was forced to spend considerable
time and effort defending the motion to suppress, and the defendant has not
demonstrated an improper motive behind that decision”); United States v. Blanco, 466
F.3d 916, 918 (10th Cir. 2006) (holding that “[e]nsuring efficient resource allocation is
a legitimate government end and a stated purpose of § 3E1.1(b)” and that the
prosecutor’s decision to withhold a § 3E1.1(b) motion when the defendant pleaded guilty
but requested reweighing of drugs is “rationally related to that end”); United States v.
No. 10-6454         United States v. Collins                                         Page 14


Sanders, 208 F. App’x 160, 163 (3d Cir. 2006) (holding that the government’s
withholding of a § 3E1.1(b) motion was justified where the government reasonably
concluded that the defendant did not permit the government or the court to “allocate their
resources efficiently”).

        Because the amended language of § 3E1.1(b) explicitly recognizes both a
government interest in avoiding trial preparation and in the efficient allocation of
government resources, this Court agrees that both are legitimate government interests
that justify the withholding of a § 3E1.1(b) motion. This Court may review the
government’s decision to withhold a § 3E1.1(b) motion only to determine whether the
government acted arbitrarily or with an unconstitutional motive. Coleman, 627 F.3d at
214. Here, the government argues that it did not make the motion because, although the
defendant pleaded guilty, the motion to suppress required it to undertake trial-like
preparations. Avoiding litigation on a motion to suppress is rationally related to the
legitimate government interest in the efficient allocation of its resources. Accordingly,
the district court correctly found that the government’s decision to withhold the
§ 3E1.1(b) motion was not arbitrary or unconstitutionally motivated.

        In Lee, the Second Circuit stated that the government should not be permitted to
punish a defendant for exercising his constitutional rights by withholding a § 3E1.1(b)
motion when the defendant does so. 653 F.3d at 174. But that court did not question the
government’s ability to withhold a § 3E1.1(b) motion when a defendant insists on going
to trial. Id. at 174-75. The government can do so without diminishing the constitutional
right to trial because a defendant can exercise his right to trial or any other constitutional
right either by affirmatively asserting the right or by waiving the right in exchange for
a lower sentence. Beatty, 538 F.3d at 16; see also Blanco, 466 F.3d at 919; Johnson,
581 F.3d at 1006-07. Likewise, a defendant can exercise his Fourth Amendment rights
by either moving to suppress evidence as Collins did or by waiving those rights in
exchange for a lower sentence under § 3E1.1(b).
No. 10-6454     United States v. Collins           Page 15


                                III. Conclusion

      The district court’s judgment is AFFIRMED.
