                              In the

    United States Court of Appeals
                 For the Seventh Circuit
No. 15-3664

UNITED STATES OF AMERICA,
                                                 Plaintiff-Appellee,

                                v.


WALTER FREEMAN,
                                             Defendant-Appellant.

        Appeal from the United States District Court for the
            Northern District of Illinois, Eastern Division.
       No. 1:12-cr-00627-1 — Sharon Johnson Coleman, Judge.


 ARGUED SEPTEMBER 23, 2016 — DECIDED DECEMBER 7, 2016


   Before RIPPLE, ROVNER, and SYKES, Circuit Judges.
    ROVNER, Circuit Judge. On September 6, 2012, the defendant
Walter Freeman was charged in a five-count indictment:
in Counts 1 and 2, with distribution of 28 grams or more of a
mixture containing cocaine base in violation of 21 U.S.C.
§ 841(a)(1); in Count 3, with possession of a firearm as a felon,
in violation of 18 U.S.C. § 922(g)(1); in Count 4, with distribu-
tion of marijuana in violation of 21 U.S.C. § 841(a)(1); and in
Count 5 with possession of a firearm in furtherance of a drug
2                                                  No. 15-3664

t r afficking crime , in v io lat io n o f 18 U .S .C .
§ 924(c)(1)(A). Freeman pled guilty to Counts 1 and 5. In an
addendum to the plea agreement, Freeman also stipulated to
the commission of a third offense, possession of a firearm after
being convicted of a felony, which had been the basis of a
different indictment. The facts underlying those charges are
not relevant to the issues on appeal; in brief, the record
indicated that Freeman distributed approximately 28 grams of
crack cocaine and traded marijuana for four firearms. Freeman
admitted that he had been selling crack cocaine to a small
group of customers since at least 1999 and bought and sold 80
firearms – 40 between 1999 and 2001 to a high ranking member
of the Gangster Disciples and 40 in a 2-month period from
October 2010 to December 2010 to a different Gangster
Disciples member, although only the latter 40 were included
for purposes of relevant conduct. The district court calculated
the guidelines range as 140 to 175 months on Count 1 and the
stipulated count, and 60 months’ consecutive imprisonment on
Count 5. After considering the factors under 18 U.S.C.
§ 3553(a), the court imposed a sentence below the guidelines
range, sentencing Freeman to 132 months’ imprisonment on
Count 1 and the stipulated offense, and a 60 months’ consecu-
tive sentence on Count 5.
    Although Freeman received a below-guidelines sentence,
he nevertheless challenges that sentence on three grounds.
First, he argues that the district court erred in failing to
consider one of his principal arguments, which was that the
district court should sentence him using a 1:1 crack-to-powder
ratio instead of the 18:1 ratio encompassed within the Sentenc-
ing Guidelines. In addition, Freeman asserts that his sentence
No. 15-3664                                                        3

should be vacated because the district court relied on its own
speculations as to uncharged criminal conduct and improperly
determined the sentence. Finally, Freeman maintains that the
district court erred in allowing its frustration with his litigation
tactics to affect his sentence. We address these arguments in
turn.
    Freeman argued to the district court that it should categori-
cally reject the 18:1 crack-to-powder ratio set forth in the
Guidelines, and instead apply a 1:1 ratio. Freeman argued that
the 18:1 ratio was the result of legislative compromise rather
than sound data, and that any disparity between the crack and
powder cocaine guidelines was inappropriate and unjust. That
argument was not an as-applied challenge, based on any
specific facts regarding Freeman or his criminal conduct, but
rather was a categorical challenge to the ratios. In imposing its
sentence, however, the district court did not explicitly address
this argument, and Freeman asserts that sentence should be
vacated and the case remanded for the court to do so.
   As an initial matter, we note that this type of claim, as to
whether a district court has properly addressed an argument,
should be an issue that we seldom see in the future because it
will be resolved in the district court rather than on appeal. As
long as district courts follow the approach we set forth in
United States v. Garcia-Segura, 717 F.3d 566, 569 (7th Cir. 2013),
the district court will be apprised immediately if defense
counsel believes issues were not addressed, and the district
court can clarify its position at that time. Specifically, in Garcia-
Segura, we identified the preferred approach as follows:
4                                                    No. 15-3664

     we encourage sentencing courts to inquire of de-
     fense counsel whether they are satisfied that the
     court has addressed their main arguments in mitiga-
     tion. If the response is in the affirmative, a later
     challenge for failure to address a principal mitiga-
     tion argument under the reasoning of Cunningham
     would be considered waived. If not, the trial court
     would have the opportunity to clarify whether it
     determined that the argument was “so weak as not
     to merit discussion,” lacked a factual basis, or has
     rejected the argument and provide a reason why.
Id; see also United States v. Rosales, 813 F.3d 634, 638 (7th Cir.
2016). We urge district courts to ask that question and thereby
prevent this type of issue from recurring.
    Turning to the issue in this appeal, a district court must
consider all of a defendant’s principal, non-frivolous argu-
ments in sentencing. Rosales, 813 F.3d at 637. That requirement
serves as a safeguard to ensure that the district court has
considered the principal issues. Id. That does not mean,
however, that the district court must respond expressly to
every argument; to impose such a burden would require the
courts to respond in each case to numerous boilerplate categor-
ical challenges, undoubtedly with the court’s own boilerplate
response, regardless of whether those claims have been
routinely rejected by the court in prior cases. We do not require
such a formulaic exercise. Accordingly, we have held that a
district court need only respond to arguments of recognized
legal merit that have a factual basis. Id.
No. 15-3664                                                    5

    In Rosales, 813 F.3d at 637–38, we considered whether a
district court must address a challenge to a career offender
guideline, and we distinguished between as-applied and
categorical challenges to guidelines provisions as follows:
      The court is not obliged to address all such argu-
      ments questioning the reasonableness of Guide-
      lines provisions. The court may pass over in
      silence a blanket policy challenge like Rosales's
      argument that the career offender guideline was
      poorly conceived and is overbroad. See United
      States v. Estrada–Mederos, 784 F.3d 1086, 1088 (7th
      Cir.2015) (collecting cases). But an as-applied
      challenge to a guideline, provided it is grounded
      in the facts of the case, not frivolous, and ade-
      quately presented to the court, is one that must be
      addressed. See United States v. Schmitz, 717 F.3d
      536, 542 (7th Cir.2013) (distinguishing between
      categorical and as-applied challenges to guideline);
      see also, e.g., United States v. Morris, 775 F.3d 882,
      887 (7th Cir.2015) (vacating sentence and remand-
      ing where district court failed to address defen-
      dant's argument that crack-to-powder cocaine
      ratio resulted in excessive sentencing range given
      that most of drug quantity attributed to him
      comprised counterfeit crack cocaine).
   Thus, district courts need not explicitly address blanket
challenges to the reasonableness of guidelines in every case in
which such boilerplate challenges are raised. The court may of
course choose to address such challenges and to agree or
disagree with the guidelines, but such routine challenges to the
6                                                   No. 15-3664

reasonableness of the guidelines do not require explicit
rejection. The challenge brought by Freeman to the ratio is a
categorical one, and therefore under Rosales such a blanket
policy challenge can be passed over in silence.
     Freeman nevertheless contends that the Rosales court is in
conflict with other decisions of this court in which we found
error in the district court’s failure to respond to arguments for
a reduced crack-to-powder ratio including United States v.
Morris, 775 F.3d 882 (7th Cir. 2015), United States v. Johnson,
643 F.3d 545 (7th Cir. 2011), and United States v. Arberry,
612 F.3d 898 (7th Cir. 2010). Those decisions, however, are not
in conflict with Rosales. First, Johnson and Arberry both con-
cerned challenges to the 100:1 crack-to-powder ratio that was
in place at that time. The excessive impact that such a drastic
ratio had on sentences caused a groundswell of opposition that
extended from courts to the Justice Department itself. See
United States v. Matthews, 701 F.3d 1199, 1202 (7th Cir. 2012)
(discussing history). As we noted in Matthews, the Justice
Department recommended elimination of the 100:1 disparity
and actively advocated against its use in some criminal cases.
Id. Therefore, at the time Johnson and Arberry were decided,
categorical challenges to the 100:1 ratio were regularly granted,
at times with the agreement of the Justice Department itself. In
that climate, silence could not be interpreted as acquiescence in
the status quo because no such consensus as to reasonableness
existed. Although some courts have determined that the 18:1
ratio at issue in this case is also unreasonable, Freeman points
to no such frequent rejection as was present with respect to the
100:1 ratio and which rendered silence ambiguous. As for
Morris, which did involve the 18:1 ratio, some broad language
No. 15-3664                                                     7

in that case, citing Johnson and Arberry, indeed indicated that a
defendant’s argument for a reduced crack-to-powder ratio is
not an argument that is so weak as to not merit discussion.
Morris, 775 F.3d at 887. But the Rosales court cited Morris in
holding that only as-applied challenges need to be explicitly
addressed, noting that in Morris the defendant argued that the
ratio resulted in an excessive sentencing range given that most
of the drug quantity attributed to him comprised counterfeit
crack cocaine. Rosales, 813 F.3d at 638. Accordingly, the Morris
court faced a guidelines challenge that was premised on the
application to the defendant’s specific facts, in which case the
district court must explicitly address the challenge. For that
reason alone, Morris is not inconsistent with the holding of
Rosales, which controls in this case. We note, however, that
even if Morris had not included an as-applied challenge, the
determination as to whether a categorical challenge requires a
response is not a static inquiry. Arguments that are novel at
one point in time and require explicit discussion may, after a
period of years, no longer require explicit discussion once a
consensus emerges or such challenges have been repeatedly
rejected such that silence, absent an indication otherwise,
would signal agreement with the conventional disposition of
such claims. By this point in time, district courts clearly are
aware of their discretion to disagree with the policies and
provisions of the Guidelines; accordingly, when routine
categorical challenges are made, absent unusual circumstances,
the district court’s silence as to it may properly be construed as
a rejection of that challenge and agreement with the Guidelines
provision. See e.g. United States v. Petty, 467 Fed. Appx. 520,
522 (7th Cir. 2012) (unpublished) (holding as early as 2012 that
8                                                   No. 15-3664

circuit precedent was against a categorical challenge to the 18:1
ratio and that the argument was raised solely to preserve it for
Supreme Court or subsequent circuit review); United States v.
Knox, 496 Fed. Appx. 649, 656 (7th Cir. 2012) (unpublished)
(noting that we have repeatedly held that there was adequate
justification for treating crack offenses more seriously and that
the court was not required to consider the argument that the
18:1 ratio is not supported by empirical evidence.). The district
court’s silence regarding the categorical challenge to the 18:1
ratio was therefore not reversible error in this case.
    Freeman’s remaining two challenges to the sentence are
also without merit. First, Freeman challenges the court’s
analysis of his request for a variance based on his criminal
history. Freeman fell within a Criminal History Category V
and argued that his criminal history was overstated because
nearly all of his criminal history points came from misde-
meanor convictions and most were the result of driving on a
suspended license. He had been convicted of a single felony
offense which occurred when he was 18 years old, and all other
criminal history points were because of driving offenses such
as driving on a suspended license, as well as possession of
marijuana and unlawful use of a weapon misdemeanors.
Defense counsel argued that a Criminal History Category II
would be more appropriate, rendering a guidelines range of 97
to 121 months, and suggested that a sentence of 120 months
would be appropriate.
    Freeman takes issue with the district court’s analysis of the
issue, quoting the court as follows:
No. 15-3664                                                     9

      And the Court does believe the criminal history
      category is overstated in one way. That most of
      your convictions except for one early on they are
      all for traffic violations. When you look at it, those
      are the convictions. That’s what it is. But this Court
      would be naive to believe that your background is
      only one of driving infractions, and that also is
      underscored by what I’ll talk about later, how
      smart you are, how intelligent you are. You get
      stopped for a reason and then you get driving on
      a suspended.
      You’ve been, as your lawyer said, selling little bits
      of drugs here and there for a while. And the
      Court—that’s why you were stopped. And some-
      how you were too smart and all they could get
      you on was driving on a suspended license. That
      would be what common sense would tell me.
Sent. Tr. 34-35. Freeman argues that the court lacked any basis
for its assumption that he had engaged in other criminal
activity which had not already been accounted for as relevant
conduct in the guidelines, and that his driving offenses
evidenced other criminal conduct. He concludes that the
district court’s § 3553(a) analysis is therefore flawed because it
was based on unreliable information. That argument fails on
two grounds. First, it is not irrational for a court to conclude
that the criminal history is not overstated merely because it
involved mainly driving offenses given the nature of the
criminal conduct here. Even concerning the driving on a
suspended license offenses themselves, the status of a person’s
license is not apparent prior to the stop, thus supporting the
10                                                      No. 15-3664

court’s reflection that the initial stop was based on a different
criminal concern. More significantly, Freeman failed to include
the entire discussion, in which the court then clarifies that it
was the nature of Freeman’s criminal conduct and the extent of
it that indicated his criminal history was not overstated. Here
is the discussion in its entirety, with the italicized portion being
the portion of the paragraph not discussed by Freeman in
which the court clarifies what its “common sense” would tell
it:
      You’ve been, as your lawyer said, selling little bits
      of drugs here and there for a while. And the
      Court—that’s why you were stopped. And some-
      how you were too smart and all they could get
      you on was driving on a suspended licenses. That
      would be what common sense would tell me. That
      that’s too many years, you’re too old for all of a sudden
      to go from basically a fairly minor crime to all of a
      sudden selling guns and drugs on the street like just a
      total professional. You build up to that. It just doesn’t
      happen. I’ve seen the cases where somebody needs
      money. Because of their situation they try to make a fast
      buck by selling some type of sawed off or half working
      gun out of the back of their car to an undercover agent
      and they get caught. I’ve seen those. That’s not what
      this is.
   That full quote reveals that the court’s focus was not on
whether his traffic stop alone signaled other criminal conduct
was occurring, but whether the circumstances as a whole
indicated that his criminal history was not overstated. The
No. 15-3664                                                    11

court did not err in opining that Freeman’s criminal history
was not overstated merely because it involved largely driving
offenses, given that the nature of those driving offenses and the
professionalism and extent of his criminal conduct in this case
both indicate that he indeed had an extensive criminal history.
In fact, the undisputed facts before the court provided some
confirmation that his criminal history was not overstated, in
that the guidelines range included 40 firearms that Freeman
sold to a Gangster Disciples member from October 2010 to
December 2010 but not 40 other firearms that Freeman sold to
different high-ranking Gangster Disciples member from 1999
to 2001.
    Therefore, the court could properly reject Freeman’s
argument that the criminal history category was overstated,
but the court did not go that far. The court in fact credited that
argument and adjusted the sentence in part based on that. The
district court imposed a sentence below the guidelines, and in
its Statement of Reasons the district court indicated as one
reason its issue with the criminal history category, and specifi-
cally that Freeman’s background of eight offenses involving
driving on a suspended license and two other offenses, serving
less than a year in jail, do not support a criminal history
category of five. Therefore, the district court accepted Free-
man’s argument in substantial part and rejected imposition of
the criminal history category in the guidelines. Accordingly,
there is no reversible error on this ground.
    Freeman’s last challenge to the sentence rests on a
mischaracterization of the district court’s decision. The district
court in the course of the sentencing hearing noted Freeman’s
intelligence and ability to organize and manage the trial
12                                                   No. 15-3664

process. In that discussion, the district court noted that
Freeman was “very specific and very calculating as to what he
thinks is going to serve his situation best, and that he worked
with one lawyer who was very good and worked hard and
then when that lawyer stepped aside he again was able to
work with the second lawyer and present the best case in his
defense. Freeman argues that the statements indicate the
court’s frustration with his litigation tactics, including his
decision to fire his first lawyer, and that the court cannot
properly increase a defendant’s sentence based on that defen-
dant’s burdensome litigation strategy. A natural reading of the
court’s statements does not support Freeman’s conclusion that
the court sought to increase his sentence because he burdened
the court with his litigation tactics. The comments cited by
Freeman were part of a series of examples provided by the
district court reflecting Freeman’s intelligence, and the need for
specific deterrence because that intelligence both provided
Freeman with other non-criminal options to make a living and
potential for rehabilitation but also the potential to engage
successfully in criminal activity. There is no merit to the
argument that the court’s statements reflect a frustration with
Freeman’s litigation strategy and desire to increase the sen-
tence on that basis.
    Accordingly, the court’s sentence must be affirmed. In
closing, we again urge the district court to avoid some of the
issues appealed here by inquiring at the close of the sentencing
hearing whether defense counsel are satisfied that the court has
addressed their main arguments in mitigation. See Garcia-
Segura, 717 F.3d at 569; Rosales, 813 F.3d at 638. That inquiry
will ensure that the parties’ arguments are fully heard, and
No. 15-3664                                            13

eliminate appeals on the basis that the arguments were not
properly addressed.
   The decision of the district court is AFFIRMED.
