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, CircuitJudge. 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 distribution 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

trafficking crime, in violation of 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

stipulatedcount, 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’ consecutive 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 Sentencing 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 categorically 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 GarciaSegura, we identified the preferred approach as follows: 
4 No. 15-3664

we encourage sentencing courts to inquire of defense counsel whether they are satisfied that the

court has addressed their main arguments in mitigation. If the response is in the affirmative, a later

challenge for failure to address a principal mitigation 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 arguments 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 categorical 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 arguments questioning 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) (distinguishing between

categorical andas-appliedchallenges 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).

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 concerned 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 aremade, 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 misdemeanor 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 somehow 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 somehow 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 specifically 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 Freeman’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 defendant’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, andtheneedfor

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 sentence 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 satisfiedthat the court has

addressed their main arguments in mitigation. See GarciaSegura, 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.