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 § 3El.l(b), by misjudging 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 § 3El.l(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 § 3El.l(b); and (2) the scope of government discretion under § 3El.l(b). Specifically, I would first determine the meaning of § 3E 1.1(b) and whether the defendant became eligible for the adjustment by fulfilling the substantive requirements of § 3El.l(b). Then, I would gauge whether the government’s denial of the adjustment was rationally related to the identified legitimate government interest.1 *1008We cannot effectively 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 § 3El.l(b), while broad, must nonetheless be closely tied to the plain language of the guideline.
1. The Meaning of Sentencing Guideline § 3El.l(b)
A. The Guideline’s Language
We first consider the language of § 3El.l(b) and whether Johnson fulfilled his obligations under that section to become eligible for the adjustment. As the majority notes, § 3El.l(b) states in relevant part that the government’s motion should be based on its assertion that the defendant
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.
(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 adjustment, 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 allocate 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 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 *1009that the government expended no resources in preparing for trial].”
Though the majority does not fully explain its reasoning, its analysis implies that § 3El.l(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 government 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 defendant’s suspected continuing drug use, United States v. Anzalone, 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 3El.l(b) as Interpreted in This Circuit
This semantic exercise is unnecessary, however, because we previously interpreted § 3El.l(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 entitled 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 § 3El.l(b)(2)7 reduction. In rejecting that view, we clarified that only trial preparation may be considered 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 Government [did] not dispute that it never had to prepare for *1010trial [,] ... under the plain language of U.S.S.G. § 3El.l(b)(2) [ (2001) ], [the defendant] was entitled to a third-level reduction in his offense level”). Thus, Vance clarified that only the defendant’s trial resource-saving timely plea may be considered 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 § 3El.l(b). I disagree. For purposes of this case, Vance interpreted language substantially 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 3E 1.1(b) tracks the former [pre-PROTECT Act] language of section 3El.l(b)(2)”). The PROTECT Act amended § 3El.l(b) in the following way (with the underscore indicating additions and the strike through 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 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 efficiently, 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) adding the consideration of government resources in preparing for trial. See id. The substantive basis for the decision to award the adjustment for a timely guilty plea remains essentially the same: the defendant is eligible for the adjustment, provided he “timely notified] authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial” and thus “permitting [the government and] the court to allocate [their] resources efficiently.” U.S.S.G. § 3El.l(b) (bracketed portions denoting PROTECT Act changes). I am not persuaded that Congress — in amending the guideline, but leaving unchanged the “timely ... plea of guilty” and “preparing for trial” language' — intended the amended guideline to allow consideration of conduct unrelated 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 Congress 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 abrogated Vance’s holding as *1011to 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 adjustment in the first place. See Espinoza-Cano, 456 F.3d at 1137. By erroneously disregarding Vance altogether, the majority leaves us with nothing against which to measure the arbitrariness 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 defendant’s satisfaction of the guideline are those resources devoted to trial preparation. 62 F.3d at 1157 (“[A] plea sufficiently in advance of trial so that the government can avoid trial preparation and the court can allocate its resources efficiently 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 § 3El.l(b), and he was therefore eligible for a third-level adjustment. Under the pre-2003 Sentencing Guidelines scheme, this determination would have ended our inquiry, and Johnson would have been entitled to the downward adjustment. Cf. United States v. Blanco-Gallegos, 188 F.3d 1072, 1077 (9th Cir.1999). However, as noted, the PROTECT Act added an additional predicate to a defendant’s benefitting from § 3E 1.1(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, 112 S.Ct. 1840, 118 L.Ed.2d 524 (1992)), in the exercise of “broad discretion to determine when the [§ 3El.l(b) ] adjustment is appropriate.” Espinoza-Cano, 456 F.3d at 1137-38. The government’s decision must not be arbitrary, i.e., not rationally related to a legitimate 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, 112 S.Ct. 1840).
In this case, the government conceded, and the district court agreed, that Johnson had timely pled guilty and saved 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 government enjoys discretion in moving for the third-level adjustment under § 3El.l(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 *10121126,10 other circuits have considered the post-PROTECT Act application of § 3E 1.1(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 assistance.11 The Fifth and Tenth Circuits have concluded, as articulated by the Tenth Circuit in United States v. Blanco, that “[ejnsuring efficient resource allocation is a legitimate government end and a stated purpose of § 3El.l(b),” 466 F.3d 916, 918 (10th Cir. 2006), and held nonarbitrary a governmental refusal to move for a one-level reduction under § 3E 1.1(b) when the United States is required to expend additional 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 preceding 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 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 providing assistance, had continued using illegal drugs). Thus, there is no consensus among the circuits over whether the government may cite a *1013reason 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 substantial 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 adjustment denial based on the “legitimate government end” of “efficient resource allocation,” Maj. Op. at 1004 (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 § 3El.l(b) adjustment whenever the defendant’s conduct causes the government to expend any resources. To allow the government to use § 3El.l(b) to accomplish objectives unrelated to the Guidelines’ plain language flouts both the Guidelines and Congress’ intent. Such a result undermines Congressional sentencing objectives by vitiating the Guidelines’ purpose of encouraging defendants to timely plead guilty and avoid trial: if the government can decline to move for a § 3El.l(b) adjustment for reasons unrelated to § 3El.l(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 unwillingness to waive his appeal rights showed that he had not “accepted responsibility in a way that ensures the certainty of his just punishment in a timely manner,” TJ.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 § 3El.l(b), as the conditional plea was arguably not a true “guilty” plea as contemplated by § 3El.l(b). I may have concluded differently were I reviewing the issue under the pre-PROTECT Act regime. But under our current standard, 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 nonarbitrary. As a result, I concur in the judgment.
. I note that at the heart of this case is the inherent difficulty of applying rational basis review to government motions for sentencing range adjustments 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, 79 S.Ct. 437, 3 L.Ed.2d 480 (1959) (holding that regulation 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, 60 S.Ct. 406, 84 L.Ed. 590 (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 *1008muster only if it is related to the government objective stated in the guidelines, or whether it fails only if it has no "conceivable 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.
. The majority criticizes this approach, implying that we must undertake the § 3El. 1(b) analysis by determining the arbitrariness of the government's application of the guideline without determining what that guideline means. To me, this is illogical.
. 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.”
. Webster's Third New International Dictionary 2372 (2002) (emphasis added).
. The majority does suggest that the term "prosecution,” U.S.S.G. § 3El.l(b), encompasses "the entirety of the criminal proceedings in a particular case until judgment is final and certain.” Maj. Op. at 1002. This reading, however, is foreclosed by Vance, 62 F.3d at 1157. See Part I.B. below.
. The majority labels these examples a "parade of horribles” and dismisses them as irrelevant to this case. Maj. Op. at 1005 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 sentencing adjustments.
. Section 3E1.1(b)(2) is part of the predecessor to the current Acceptance of Responsibility Guideline. As shown below, though it is formatted slightly differently, it is substantively similar for the purposes of this case.
. The majority suggests that this approach renders the changes created by the PROTECT Act "superfluous.” Maj. Op. at 1005-06 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 "preparing for trial” portion of the post-PROTECT Act § 3El.l(b), by permitting an adjustment withholding based on a reason unrelated to the guideline’s stated purpose.
. In Medina-Beltran, the court determined that, "[u]nder these circumstances,” the government's decision not to move for a § 3El. 1(b) reduction was not arbitrary. Id. at 731. In so concluding, however, the Medina-Beltran panel provided no analysis and cited only an out-of-circuit decision as authority. Id. (citing Newson, 515 F.3d at 378-79). Other than stating 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] circumstances,” id., or whether Medina-Beltran's plea was "timely” as required by § 3El.l(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 § 3E 1.1(b). Curiously, Medina-Beltran is structured more like a *1012memorandum 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 1003 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 background and cursory treatment of the § 3El.l(b) issue prevent us from determining precisely what it controls. Accordingly, Medina-Beltran cannot be read to establish a per se rule of nonarbitrariness where the government declines to move for a § 3El. 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 appropriate to re-visit the issue in a later case[,]” provided that "tire later panel is convinced that the earlier panel did not make a deliberate decision to adopt the rule of law it announced.”).
. Espinoza-Cano is also largely inapposite. Unlike Johnson, Espinoza-Cano did not "timely notify[ ] authorities of his intention to enter a plea of guilty,” U.S.S.G. § 3El.l(b); indeed, he never pled guilty at all. 456 F.3d at 1129. His conduct therefore did not meet the plain requirements of § 3El.l(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.
. As the majority notes, the government’s discretion under § 5K1.1 is the same as under § 3El.l(b). See Espinoza-Cano, 456 F.3d at 1136 (holding that "a prosecutor is afforded the same discretion to file an acceptance of responsibility motion for a third level reduction under section 3El.l(b) as that afforded for the filing of a substantial assistance motion under section 5K1.1”).
. See notes 9 and 10.