Whether the application of the Dost factors is appropriate in determining the lasciviousness standard for attempted sexual exploitation of a minor under Supreme Court precedent

question presented is: Where Supreme Court precedent has been usurped by a United States District Court decision regarding the lasciviousness standard applied in cases of (attempted) sexual exploitation of a minor, 18 U.S.C. §§ 2251(a), 2251(e), and 2256(2)(A), and the defendant’s counsel failed to research and bring that precedent to the courts’ attention, leading to a conviction, has counsel been deficient in his representation of the defendant? IL. The Eighth Amendment of the United States Constitution prohibits the infliction of cruel and unusual punishments, i.e., the punishment must fit the crime. The question presented is: Where the defendant engaged in voyeuristic behavior, recording a minor changing her clothes and going into and out of a shower, resulting in a charge and conviction of attempted sexual exploitation of a minor and receiving a sentence of 210 months, a significantly higher sentence than he would have received for voyeurism, has his Eighth Amendment right been violated? Il. Petitioner filed a motion pursuant to 28 U.S.C. § 2255 for a claim of ineffective assistance of counsel. The district court denied the petitioner a hearing on the motion for ineffectiveness of counsel but granted a Certificate of Appealability with regard to the legal correctness of that court’s finding of lasciviousness related to recordings of a minor changing her clothes and going into and out of a shower. The district court’s initial finding was based on the Dost factors. United States v. Dost, 636 F. Supp. 828, 832 (S.D. Cal. 1986). A more recent case in the United States Court of Appeals in the District of Columbia Circuit outlined the Supreme Court precedent defining the lasciviousness standard and disavowing the application of the Dost factors to these cases. United States v. Hillie, 39 F 4th 674 (D.C. Cir. 2021). Under that precedent, “lascivious exhibition . . . mean[s] that the minor displayed his or her anus, genitalia, or pubic area in a manner connoting that the minor or any person or thing appearing with the minor in the image, exhibits sexual desire or an inclination to engage in any type of sexual activity. .. . [T]he ‘lascivious exhibition of the anus, genitals, or pubic area’ must be performed in a manner that connotes the commission of a sexual act. . . . Nudity is prohibited only when it is accompanied by simulated sexual conduct, that is, the explicit depiction of the prohibited acts. . . . [T]he conduct prohibited by the terms ‘sexual conduct’ and ‘sexually explicit conduct’ in child i pornography statutes [is] ‘hard core’ sexual conduct.” Jd. at 685. The Eighth Circuit Court of Appeals affirmed the application of the Dost factors. The question presented is: Is application of the Dost factors appropriate in a determination of the lasciviousness standard related to charges of (attempted) sexual exploitation of a minor, or does the Supreme Court precedent requiring depictions of sexual conduct more properly meet the standard? ii