                            UNPUBLISHED ORDER
                         Not to be cited per Circuit Rule 53




         United States Court of Appeals
                              For the Seventh Circuit
                              Chicago, Illinois 60604

                               Submitted July 19, 2006
                                Decided July 24, 2006

                                        Before

                   Hon. KENNETH F. RIPPLE, Circuit Judge

                   Hon. DANIEL A. MANION, Circuit Judge

                   Hon. DIANE P. WOOD, Circuit Judge

No. 05-3788

UNITED STATES OF AMERICA,                     Appeal from the United States
         Plaintiff-Appellee,                    District Court for the
                                                Central District of Illinois.
              v.
                                              No. 1:04-CR-10061
RALPH BROOKS,
         Defendant-Appellant.                 Joe Billy McDade, Judge.



                                      ORDER

        Ralph Brooks entered a blind guilty plea to a single count of bank robbery, 18
U.S.C. § 2113(a), and was sentenced to 155 months’ imprisonment and three years’
supervised release. He was also ordered to pay restitution of $4,720.00 and a special
assessment of $100.00. Brooks filed a notice of appeal, but his appointed lawyer has
filed a motion to withdraw and a supporting brief representing that he cannot discern
a non-frivolous issue to argue on appeal. See Anders v. California, 386 U.S. 738 (1967).
In particular, counsel states that the district court “made no error” at sentencing with
respect to factfinding or the application of the advisory sentencing guidelines. Brooks
has filed a response. See Cir. R. 51(b). Although counsel’s assessment of the sentencing
No. 05-3788                                                                       Page 2


proceeding is not wholly accurate, he is correct that an appeal would be frivolous, and
we will therefore grant the motion to withdraw.

       In calculating Brooks’s imprisonment range, the district court began with a base
offense level of 20, see U.S.S.G. § 2B3.1(a), and added two offense levels for taking
property from a “financial institution,” see id. § 2B3.1(b)(1), and another level because
the amount stolen exceeded $10,000, see id. § 2B3.1(b)(7). Over Brooks’s objection, the
district court then added two levels because Brooks’s cohort, Marvin Landfair,
threatened to kill anyone who moved during the robbery, see id. § 2B3.1(b)(2)(F), and
two more for obstruction of justice and perjury, see id. § 3C1.1 & cmt. n. 4(b), because
Brooks had lied to investigators and the court about Landfair’s participation in the
crime. Finally, the district court granted Brooks a three-level downward adjustment
for acceptance of responsibility, see id. § 3E1.1. The court’s calculations resulted in a
total offense level of 24. However, the court went on to find that Brooks is a career
offender under U.S.S.G. § 4B1.1. His original base offense level was therefore
supplanted; it instead became 32.            After the adjustment for acceptance of
responsibility, the total offense level of 29 and the required criminal history category
of VI yielded a guidelines imprisonment range of 151 to 188 months.

       Brooks had objected to a number of the Chapter Two adjustments for specific
offense characteristics that were recommended in the presentence investigation report.
He renews those objections in his Rule 51(b) submission. An appeal based upon the
application of any of these adjustments would be frivolous, however, because the
district court’s conclusion that Brooks is a career offender rendered the Chapter Two
adjustments irrelevant. Section 4B1.1 prescribed his offense level without regard for
any specific offense characteristics. Nevertheless, counsel passed over the district
court’s calculations too casually. We have identified an error that would have justified
denying counsel’s motion were it not for the operation of the career-offender guideline,
and we find it worthwhile to explain.

       Brooks objected to the probation officer’s recommendation that he receive a two-
level increase because the bank robbery involved an express threat of death. See
U.S.S.G. § 2B3.1(b)(2)(F). He opposed the adjustment because he insisted that he
never knew Mayfair threatened anyone, but at the sentencing hearing the district
court stated that the adjustment nonetheless applied because “the fact that the
defendant didn’t hear a threat that was made is no excuse.” And in its written
resolution of Brooks’s objections, the court elaborated, correctly, that Brooks was
responsible for Landfair’s death threat if it was a reasonably foreseeable act committed
in furtherance of their jointly undertaken criminal activity. See U.S.S.G. §
1B1.3(a)(1)(B). But rather than evaluate whether Brooks reasonably could have
anticipated Mayfair’s threat, the district reasoned simply that a death threat “falls into
the category of reasonably foreseeable conduct” during a bank robbery.
No. 05-3788                                                                       Page 3


       In a similar case, we held that a sentencing court committed clear error in
failing to identify facts from the particular case to support its decision that a
codefendant’s use of a gun during a bank robbery was reasonably foreseeable to the
driver of the getaway car. See United States v. Atwater, 272 F.3d 511, 512 (7th Cir.
2001). We faulted the district court for considering it “a given” that a gun would be
used instead of applying a more discriminating analysis to the particular facts of the
case. Id. at 512-13. Although the nature of the offense is relevant, we could not uphold
application of the adjustment in Atwater because the court lacked evidence concerning
“how frequently guns are used in bank robberies” and “greatly exaggerated that
frequency and having done so neglected the particulars of the case.” See id. at 513-14.
Likewise in Brooks’s case the district court relied solely on the nature of bank robberies
in general to conclude that a death threat was reasonably foreseeable. Therefore,
Brooks could have argued that the district court erred in its application of
§ 2B3.1(b)(2)(F).

        As we have noted already, however, the argument would have been unavailing
in this case because none of the Chapter Two adjustments had any bearing on Brooks’s
sentence because he is a career offender. Counsel has identified no potential argument
with respect to that determination, pointing out that Brooks did not contest any of the
predicate offenses in the district court. Brooks proposes arguing that § 4B.1.1 was
erroneously applied because the facts underlying his prior convictions were not
presented to a jury, but we have repeatedly rejected this contention. See United States
v. Washington, 417 F.3d 780, 788 (7th Cir. 2005); United States v. Blake, 415 F.3d 625,
629 (7th Cir. 2005). The sentence is therefore presumed reasonable because it falls
within a properly calculated range, see United States v. Mykytiuk, 415 F.3d 606, 608
(7th Cir. 2005), and neither counsel nor Brooks raises any plausible basis on which the
presumption might be rebutted.

       Finally, Brooks seeks to raise a claim that his trial counsel was ineffective, but
such claims are best raised in motions under 28 U.S.C. § 2255. See Massaro v. United
States, 538 U.S. 500, 504 (2003).

      Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED.
