                               In the

    United States Court of Appeals
                 For the Seventh Circuit
No. 15-1580

UNITED STATES OF AMERICA,
                                                   Plaintiff-Appellee,

                                  v.


ORLANDO ROSALES,
                                                Defendant-Appellant.

         Appeal from the United States District Court for the
                    Western District of Wisconsin
         No. 3:14-cr-00114-bbc-1 — Barbara B. Crabb, Judge.


 ARGUED NOVEMBER 10, 2015 — DECIDED FEBRUARY 11, 2016


   Before POSNER, EASTERBROOK, and ROVNER, Circuit Judges.
    ROVNER, Circuit Judge. Orlando Rosales pleaded guilty to
a charge that he conspired to possess, with intent to distribute,
500 grams or more of cocaine, and was sentenced to a term of
120 months in prison. He appeals the sentence, contending that
the district court committed procedural error by not giving
adequate reasons for rejecting his contention that he should not
be sentenced as a career offender. We affirm.
2                                                   No. 15-1580

                               I.
    Rosales played a managerial role in a small cocaine traffick-
ing ring in Sauk County, Wisconsin. With the assistance of
three other individuals, Rosales obtained cocaine from two
different suppliers, one in Chicago and one in Madison,
Wisconsin, and then distributed it to his customers in Wiscon-
sin. Rosales’s drug trafficking was exposed when individuals
cooperating with the government identified his Chicago
connection as a cocaine supplier and named Rosales as one of
the supplier’s customers. The Chicago supplier was arrested
after a confidential informant arranged a controlled purchase
of cocaine from him; he in turn confirmed that he had supplied
cocaine to Rosales on multiple occasions. Rosales was ulti-
mately charged in a one-count information with conspiracy
with the intent to distribute in excess of 500 grams of cocaine
from August 2011 to November 2013. He pleaded guilty to that
charge pursuant to a written plea agreement in which he
agreed to waive indictment and cooperate with the govern-
ment (Rosales aided the government in the prosecution of the
supplier who fingered him) and in which the government
agreed to recommend that he be given maximum credit for
acceptance of responsibility and that his sentence be reduced
in recognition of his substantial assistance to the government.
   Pursuant to the Sentencing Guidelines, Rosales faced an
advisory sentence of between 188 and 235 months. The range
would have been lower—140 to 175 months—absent a three-
level increase in his offense level resulting from the career
No. 15-1580                                                               3

offender guideline. U.S.S.G. § 4B1.1.1 Generally, the career
offender guideline applies when the defendant (1) was at least
18 years old when he committed the instant offense; (2) the
instant offense is a felony that is either a crime of violence or a
controlled substance offense; and (3) the defendant has at least
two prior felony convictions that qualify either as a crime of
violence or a controlled substance offense. § 4B1.1(a). A
controlled substance offense is defined to include a felony
offense that, as relevant here, involves the possession of a
controlled substance with the intent to distribute. § 4B1.2(b).
The crime to which Rosales pleaded guilty in this case of
course qualifies as a controlled substance offense, and Rosales
had three such prior convictions. In 2004 and 2008, he had been
convicted of possessing, with the intent to distribute, less than
200 grams and more than 2,500 grams of marijuana, respec-
tively; and in 2011, he had been convicted of possessing, with
the intent to distribute, between one and five grams of cocaine.
The presentence report reminded the district judge that she
had the discretion to disagree with the policy reflected in the
career offender guideline when she sentenced Rosales. R. 14 at
29 ¶ 149; R. 15 at 29 ¶ 151.
   In a written memorandum filed prior to sentencing, and
again in his oral remarks at the sentencing hearing, Rosales’s
counsel asked the court, on two separate but related grounds,
to disregard the sentencing increase called for by the career


1
  Application of the career offender guideline also dictated that Rosales be
assigned to the top criminal history category of VI, but the extent of his
criminal history would have placed him in category VI regardless of the
career offender designation.
4                                                  No. 15-1580

offender guideline. The first of these was a policy-based
challenge to the career offender guideline itself, positing that
the guideline was adopted without empirical research and
careful study, and represented unsound policy to the extent it
applied not only to large-scale drug traffickers but also to
relatively low-level offenders who, like Rosales, trafficked in
drugs primarily to support their own drug habits and did not
reap large amounts of money from their drug-dealing. The
second was an as-applied challenge, which argued that the
career offender designation was inappropriate in Rosales’s
case, given that his predicate drug-trafficking convictions
involved relatively modest amounts of marijuana and cocaine;
that he had no history of violence; that his drug dealings were
driven by a need to support himself, his family, and his own
drug, alcohol, and gambling habits; that his supplier received
only a 48-month sentence; and generally that a lengthier
sentence was inconsistent with the sentencing factors identified
in 18 U.S.C. § 3553(a). Counsel proposed that Rosales be
sentenced to a term of six years.
    The district court, after hearing the parties at sentencing,
adopted the pre-sentence report, applied the career offender
guideline in determining Rosales’s advisory sentencing range,
granted the government’s motion for a multi-level downward
variance from the Guidelines range based on his substantial
assistance, and ordered Rosales to serve a sentence of 120
months in prison, to be followed by a four-year period of
supervised release. After announcing the sentence, the district
judge asked defense counsel whether he “ha[d] any specific
objections to the sentence or to the conditions [of supervised
release] that you haven’t already mentioned.” R. 36 at 27.
No. 15-1580                                                   5

     MR. MANDELL: I don’t[,] other than I don’t know
                  why the court applied the career
                  offender guideline other than the
                  prior convictions under the infor-
                  mation I provided, but –
     THE COURT:         That’s a good question. I applied
                        the career offender guideline[ ]
                        because Mr. Rosales’s criminal
                        conduct justified the application.
     MR. MANDELL: Even though the prior convic-
                  tions were for relatively minor
                  offenses?
     THE COURT:         Right.
     MR. MANDELL: Okay.
R. 36 at 27-28.
                              II.
    Rosales contends that the district court erred procedurally
at his sentencing by not adequately articulating its reasons for
rejecting his argument that the career offender guideline
should not be applied in his case given the relatively minor
nature of his predicate convictions.
   A district court is required at sentencing to address the
defendant’s principal arguments in mitigation unless those
arguments are without factual foundation or are too weak to
require discussion. United States v. Cunningham, 429 F.3d 673,
679 (7th Cir. 2005). This obligation functions as a safeguard
ensuring that the district judge has not overlooked and has
6                                                     No. 15-1580

actually considered the principal issues informing her sentenc-
ing decision. United States v. Donelli, 747 F.3d 936, 940 (7th Cir.
2014). “The requirement is based on the view that a ‘judge who
fails to mention a ground of recognized legal merit (provided
it has a factual basis) is likely to have committed an error or
oversight.’” Id. (quoting Cunningham, 429 F.3d at 679).
    Frequently, a defendant’s principal argument in mitigation
takes the form of a challenge to the Guidelines themselves.
After United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005),
a sentencing judge has the discretion to disagree either with a
particular provision of the Sentencing Guidelines, Kimbrough
v. United States, 552 U.S. 85, 128 S. Ct. 558 (2007), or the
sentencing range that results from application of the Guide-
lines as a whole, Rita v. United States, 551 U.S. 338, 351,
127 S. Ct. 2456, 2465 (2007), and to impose a non-Guidelines
sentence that, in her judgment, is more consistent with the
statutory sentencing factors set out in 18 U.S.C. § 3553(a). See
United States v. Corner, 598 F.3d 411, 416 (7th Cir. 2010) (en
banc). The judge’s authority to disagree with the Guidelines
extends to the career offender guideline at issue here. See id.
The court is not obliged to address all such arguments ques-
tioning the reasonableness of Guidelines 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 adequately
presented to the court, is one that must be addressed. See
United States v. Schmitz, 717 F.3d 536, 542 (7th Cir. 2013)
No. 15-1580                                                        7

(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 remanding where
district court failed to address defendant’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).
    Arguments that a sentencing court committed procedural
error of the Cunningham variety, by failing to address a defen-
dant’s principal argument in mitigation, including challenges
to the Guidelines, have become a staple in this court. See
Donelli, 747 F.3d at 941 (citing United States v. Castaldi, 743 F.3d
589, 595 (7th Cir. 2014)). And yet it is a relatively simple matter
for a district judge to obviate such an appellate argument by
ensuring, before the close of the sentencing hearing, that she
has addressed each of the defendant’s principal arguments in
mitigation. To that end, we suggested in United States v. Garcia-
Segura, 717 F.3d 566, 569 (7th Cir. 2013), that the judge ask
defense counsel whether he or she is satisfied that the court has
adequately addressed the main arguments in mitigation. If
counsel replies in the affirmative, a contention on appeal that
the district court failed to address a principal argument in
mitigation would be deemed waived. Id. If counsel replies in
the negative, then that would give the court the opportunity to
make clear either why it did not view the argument as warrant-
ing discussion or why it had rejected the argument on its
merits. Id.
   In this case, the district judge did not pose quite the inquiry
we suggested in Garcia-Segura when she asked if there were
8                                                     No. 15-1580

“any specific objections” to the sentence that defense counsel
hadn’t mentioned, see Morris, 775 F.3d at 886; but nonetheless
defense counsel took the opportunity to inquire why the judge
had sentenced Rosales as a career offender. The judge in turn
remarked that she applied the career offender guideline
because she thought that Rosales’s criminal conduct justified
it, notwithstanding (at defense counsel’s prompting) that his
predicate crimes were, in counsel’s view, relatively minor.
    In view of this exchange, there can be no question that the
district court considered and rejected Rosales’s principal
argument in mitigation. The court plainly understood that it
had the discretion not to sentence Rosales as a career offender,
discretion that was highlighted both in Rosales’s sentencing
memorandum and the probation officer’s presentence report.
And the district judge quite clearly indicated that she believed
it appropriate to adhere to the career offender guideline in
sentencing Rosales. The only issue is the adequacy of the
judge’s explanation. Defense counsel perhaps could have
pressed the judge to say more than she did, but having already
prompted the court for an explanation, we do not fault him for
letting the matter rest once the court indicated that it had
rejected the argument on its merits.
    A court’s obligation to address a defendant’s principal
argument in mitigation does include giving reasons for why it
has rejected that argument. See Garcia-Segura, 717 F.3d at 569
(citing Cunningham, 429 F.3d at 679); see also, e.g., United States
v. Thomas, 794 F.3d 705, 713 (7th Cir.) (citing Morris, 775 F.3d at
886-88), cert. denied, 136 S. Ct. 558 (2015). In this case, the
court’s explanation that it hewed to the career offender
guideline because Rosales’s conduct justified it arguably
No. 15-1580                                                      9

amounted to ipse dixit, in that the court did not articulate why
it viewed his conduct as supporting application of the guide-
line. Cf. United States v. Jones, 798 F.3d 613, 618 (7th Cir. 2015)
(although record made clear district court considered defen-
dant’s mitigation arguments but rejected them, court did not
directly explain why it found them unpersuasive). But for two
reasons we are satisfied that any Cunningham error was
harmless. See Morris, 775 F.3d at 885 (procedural error at
sentencing is subject to harmless-error review).
    First, Rosales’s as-applied challenge to the career offender
guideline overlapped substantially with his policy argument
and would apply equally to many offenders. As his sentencing
memorandum itself posited, because the career offender
guideline comes into play whenever a defendant has two prior
convictions for a drug trafficking offense, regardless of the
drug quantity involved, the guideline will apply to countless
low-level offenders who are poor, addicted to narcotics, and
resort to trafficking to support themselves and their families,
not to mention their addictions. So vis-à-vis the purported
overbreadth of the guideline, Rosales’s case did not present a
particularly unique or compelling set of circumstances that
required discussion. To be sure, the court was obliged to
consider Rosales’s personal characteristics and history in
arriving at an appropriate sentence, irrespective of how much
he may have had in common with other low-level, repeat
distributors of narcotics who qualify as career offenders. See
§ 3553(a)(1). But the court plainly complied with that obligation
here: it addressed Rosales’s individual circumstances, includ-
ing his drug and alcohol addictions, at some length in arriving
at the sentence. R. 36 at 17-18, 21-22.
10                                                   No. 15-1580

    Second, the record otherwise makes plain to us why the
district judge was not convinced the career offender guideline
was out of place here. See Rita, 551 U.S. at 358-59, 127 S. Ct. at
2469 (short explanation of court’s sentencing rationale suffi-
cient where record makes plain reason for its conclusion); Jones,
798 F.3d at 618 (“So long as the record gives us confidence that
the court meaningfully considered the defendant’s mitigation
arguments, ‘even if implicitly and imprecisely,’ that is
enough.”) (quoting United States v. Diekemper, 604 F.3d 345, 355
(7th Cir. 2010)). Rosales had not the requisite two but rather
three prior convictions for drug trafficking, and the case for
those predicates being minor (or, for that matter, remote from
his present conviction, as he has also argued) was never as
convincing as his counsel made it out to be. One of those three
convictions involved a 7.3-pound quantity of marijuana, which
is by no means a small quantity, let alone a personal-use
quantity, as Rosales has said was typical of his prior convic-
tions. More to the point, Rosales’s criminal history reflects a
pattern of drug sales that began with marijuana, transitioned
to cocaine (a more serious narcotic), and culminated in a multi-
participant trafficking operation that dealt in what the district
judge characterized as substantial quantities of the latter drug.
(She found that Rosales was responsible for 2.87 kilograms of
cocaine, conservatively.) Apart from the predicate convictions
triggering the career offender enhancement, Rosales’s criminal
history included multiple arrests and convictions for the
possession of narcotics and drug paraphernalia. Furthermore,
as the district judge pointed out, his history revealed no
evidence of legitimate income in the years immediately
preceding the instant offense. So one could reasonably infer,
No. 15-1580                                                 11

and it is obvious to us that Judge Crabb did, that Rosales was
engaged in drug dealing in those years and that the transac-
tions that gave rise to this prosecution were part of a years-
long, continuous, and escalating pattern of drug dealing. In
short, it does not appear that Rosales was unfairly ensnared by
the career offender guideline.
    Beyond this, Rosales’s attack on the career offender
guideline was really a challenge to the wisdom of the guideline
itself, which, as we have said, was the sort of challenge the
district court was not required to address.
                             III.
   For all of the foregoing reasons, we AFFIRM Rosales’s
sentence.
