of § 3El.l(b), we agree. The Ninth and Tenth Circuits have concluded that “a prosecutor is afforded the same discretion to file an acceptance of responsibility motion for a third level reduction ... as for the filing of a substantial assistance motion under section 5K1.1.” United States v. Espinoza-Cano, 456 F.3d 1126, 1136 (9th Cir.2006); accord United States v. Moreno-Trevino, 432 F.3d 1181, 1185-86 (10th Cir.2005). Based on that analogy, the Tenth Circuit describes the government’s discretion to file a motion under § 3El.l(b) “a power, not a duty.” Id. at 1186. Even when the Government has discretion to act, it may not act arbitrarily or irrationally or base its actions on an unconstitutional motive. Wade v. United States, 504 U.S. 181, 186-87, 112 S.Ct. 1840, 118 L.Ed.2d 524 (1992) (<HOLDING>); see also United States v. Solis, 169 F.3d
holding that governmentmotion requirement of  5k11 does not impose duty on government but that government decision not to move must be related to legitimate governmental end holding the fourteenth amendment does not apply to the actions of the federal government holding that attempts to disclose government employee misconduct has been held to further governmental efficiency meeting the governmental employers responsibility to provide effective services holding that amtrak is an agency of the government  for purposes of the constitutional obligations of government holding that the defendant failed to demonstrate government acquiescence in part because he never reported alleged gang incidents to the government and therefore could not prove that the government was even aware of a problem