Whether the definition of 'lascivious exhibition' under 18 U.S.C. § 2256(2)(A)(v) requires that the depiction be made with intent to sexually arouse or appeal to prurient interest, or whether lasciviousness can be determined solely by the six-factor Dost test applied to the visual content itself

No question identified. : specifically, “lascivious exhibition” under 18 U.S.C. § 2256(2)(A)(v), which was an element of the offenses for which Petitioner was convicted. The court of appeals held that “lascivious exhibition” means a “depiction which displays or brings forth to view in order to attract notice to the genitals or pubic area of children, in order to excite lustfulness or sexually stimulation in the viewer,” and that “lasciviousness” can be determined by applying six factors first identified in United States v. Dost, 636 F. Supp. 828 (S.D. Cal. 1986), aff'd, 813 F.2d 1231 (9th Cir. 1987). Wilkerson, 124 F.4th at 366-67, 369. This definition raises an important question about the meaning of a federal statute that is at odds with this Court’s decision in United States v. Williams, 553 U.S. 285 (2008), and in direct conflict with United States v. Hillie, 39 F.4th 674 (D.C. Cir. 2022). 3. Petitioner was represented in the district court and court of appeals by the Federal Public Defender for the Western District of Texas and is represented in this Court by Assistant Federal Public Defender Kristin L. Davidson, a member of the Bar of this Court. Since the Fifth Circuit handed down its decision on December 30, counsel has been engaged in many matters in this Court and the Fifth Circuit, limiting the amount of time she has been able to devote to preparing the petition in this case. Counsel has filed nine briefs in the Fifth Circuit, as well as one petition for certiorari and a reply to a brief in opposition in this Court. Counsel also had an oral argument before the en banc Fifth Circuit. Between now and the current March 31, 2025, deadline, counsel 2 has seven opening briefs and two anticipated reply briefs due in the Fifth Circuit, and an oral argument before the Fifth Circuit on March 31, 2025. And between March 31 and April 30, 2025, counsel has three opening briefs due in the Fifth Circuit and one petition for certiorari in this Court, with more briefing notices likely to issue during that time. For these reasons, Petitioner respectfully requests that an order be entered extending his time to petition for certiorari in the above-captioned case to and including April 30, 2025. Respectfully submitted, MAUREEN SCOTT FRANCO Federal Public Defender KRISTIN L. DAVIDSON Assistant Federal Public Defender Counsel of Record OFFICE OF THE FEDERAL PUBLIC DEFENDER WESTERN DISTRICT OF TEXAS Counsel for Petitioner February 27, 2025 CERTIFICATE OF SERVICE I, a member of the Bar of this Court, certify that on February 27, 2025, I served a copy of this Application on Counsel for the United States on all parties required to be served by enclosing a copy of each in an envelope and delivering it to FedEx, a third party commercial carrier, for delivery within three calendar days to: Solicitor General of the United States U.S. Department of Justice 950 Pennsylvania Avenue, NW, Room 5614 Washington, D.C. 20530 (202) 514-2203 /s/ Kristin L. Davidson KRISTIN L. DAVIDSON Assistant Federal Public Defender Western District of Texas 300 Convent St., Ste. 2300 San Antonio, Texas 78205 Tel.: (210) 472-6700 Fax: (210) 472-4454