                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 18-1094
                        ___________________________

                             United States of America

                        lllllllllllllllllllllPlaintiff - Appellee

                                           v.

                                   Angela Parrott

                       lllllllllllllllllllllDefendant - Appellant
                                       ____________

                    Appeal from United States District Court
                  for the Eastern District of Missouri - St. Louis
                                  ____________

                            Submitted: August 23, 2018
                              Filed: October 11, 2018
                                     [Published]
                                  ____________

Before LOKEN, BOWMAN, and ERICKSON, Circuit Judges.
                          ____________

PER CURIAM.

      Angela Parrott pleaded guilty to possession of identification documents,
possession of counterfeit access devices, and possession of access-device-making
equipment in violation of 18 U.S.C. §§ 1028(a)(3), 1029(a)(3), and 1029(a)(4), and
to aggravated identity theft in violation of 18 U.S.C. § 1028A(a)(1). At sentencing,
the district court1 determined that Parrott’s advisory guidelines range was 27 to 33
months on the first three grouped offenses, and a consecutive 24 months for the
aggravated identity offense. The court imposed a 51-month sentence. Parrott appeals
the 27-month component, arguing that trial counsel provided ineffective assistance
at sentencing. We disagree and affirm.

       After Parrott appealed, we appointed a new lawyer to represent her on appeal,
who timely filed her initial brief. The government moved to dismiss, arguing the
appeal is barred by a knowing and voluntary appeal waiver in Parrott’s plea
agreement. We deny the motion to dismiss. The appeal waiver explicitly excepted
claims of ineffective assistance of counsel. While the exception could be read as
applying only to ineffective assistance claims raised in a post-conviction proceeding,
that wording reflected our normal practice of deferring ineffective assistance claims
to collateral proceedings, when the necessary record can be developed. See, e.g.,
United States v. Schwarte, 645 F.3d 1022, 1034-35 (8th Cir. 2011). Here, Parrott
argues the record on direct appeal is sufficient to decide her ineffective assistance
claims. In these circumstances, we conclude the appeal waiver is ambiguous and
must be read “against the government ‘and in favor of a defendant’s appellate
rights.’” United States v. Azure, 536 F.3d 922, 929 (8th Cir. 2008) (citation omitted).

       Parrott first argues that trial counsel was ineffective because he failed to argue
that unusable access devices should not have been considered when the district court
calculated her intended loss of $198,000 under § 2B1.1 of the Sentencing Guidelines.
She argues that the record on direct appeal is adequate to decide this issue because
filings relating to her co-defendant, James Barnett, that “were filed in the same case”
show prejudicial error. Unlike Parrott’s trial counsel, Barnett’s counsel made an
unusability argument to the same district judge before Barnett was sentenced three


      1
       The Honorable Catherine D. Perry, United States District Judge for the Eastern
District of Missouri.

                                          -2-
months after Parrott. Parrott claims that Barnett’s intended loss was then “determined
to be less than $150,000” based on the same universe of access devices, resulting in
a guideline range of 18 to 24 months and a total sentence of 36 months including the
consecutive aggravated identity theft sentence.

       We conclude this contention, though creative, is without merit. The record
reflects that Barnett’s attorney made the objection but acknowledged it appeared to
be foreclosed by United States v. Thomas, 841 F.3d 760, 764-65 (8th Cir. 2016), as
the government argued in response. The Courtroom Minute Sheet for Barnett’s
sentencing then reflects that “the parties have resolved those objections, concluding
that the total offense level is 15, and amount of loss is less than $150,000.” In other
words, the argument made by counsel for Barnett was not ruled on favorably by the
court, though it may have prompted a government concession. Moreover, we held in
Thomas that an access device does not have to be actually used to be counted as
intended loss; we then noted that other circuits disagree whether “USSG § 2B1.1
contains a usability requirement,” a question we have not addressed. 841 F.3d at 764-
65. As failing to raise an argument that “require[s] the resolution of [an] unsettled
legal question[]” rarely constitutes ineffective assistance, Basham v. United States,
811 F.3d 1026, 1029 (8th Cir. 2016) (citation omitted), we conclude that Parrott’s
counsel was not ineffective for failing to raise this argument.2

       Parrott further claims that trial counsel was ineffective for not encouraging her
to write a pre-sentencing letter to the district court, depriving her of an opportunity
to “show her sincere acceptance of responsibility.” At sentencing, however, counsel
urged the district court to give Parrott a reduced sentence partly because Parrott had
been “quick” to cooperate with the government after she was arrested. Parrott then


      2
        To the extent Parrott also argues that the district court committed plain error
by including unusable access devices in determining intended loss, that contention
is foreclosed by the appeal waiver.

                                          -3-
turned down a chance to express her remorse to the court in person. On this record,
Parrott has failed to establish either prong of the Strickland test for ineffective
assistance of counsel -- that counsel’s effort to articulate mitigating factors at
sentencing “fell below an objective standard of reasonableness,” or that Parrott was
prejudiced because “there is a reasonable probability” she would have received a
shorter sentence if counsel had not been ineffective in presenting her case for a
reduced sentence. Winfield v. Roper, 460 F.3d 1026, 1033 (8th Cir. 2006), cert.
denied, 550 U.S. 939 (2007).

      The judgment of the district court is affirmed. The court appreciates substitute
appointed counsel’s willingness to accept and vigorously pursue Angela Parrott’s
appeal.
                     ______________________________




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