Can a single decision from another circuit afford fair warning that the federal circuit in which an individual resides may overrule settled precedent dictating that his conduct is innocent?

QUESTION PRESENTED FOR REVIEW In the absence of a circuit split, can a single decision from another circuit afford fair warning that the federal circuit in which an individual resides may overrule settled precedent dictating that his conduct is innocent? The Tenth Circuit approved retroactive application of its decision attaching criminal consequences to conduct that was innocent when it took place. Other circuits have permitted retroactive application only of decisions from this Court that resolved a circuit split existing at the time an offense was committed. i SUPREME COURT OF THE UNITED STATES OCTOBER TERM 2020 DONOVAN MUSKETT, Petitioner, vs. UNITED STATES OF AMERICA, Respondent. DECLARATION OF COUNSEL Pursuant to Supreme Court Rule 29.2, I, Aric G. Elsenheimer, Assistant Federal Public Defender for the District of New Mexico, declare under penalty of perjury that Iam a member of the bar of this court and counsel for Petitioner Donovan Muskett and that I caused to be mailed a copy of the petition for writ of certiorari to this court by first class mail, postage prepaid, by depositing one copy in an envelope addressed to the Clerk of this Court, in the United States Post Office at 1135 Broadway Blvd. NE, Albuquerque, New Mexico, at approximately 5:00p.m. on the 3"! day of February 2021. LES — VA Aric G. Elsenheimer Attorney for Petitioner FEDERAL PUBLIC DEFENDER 111 Lomas NW, Suite 501 Albuquerque, NM 87102 (505) 346-2489 ii