FOR THE WESTERN DISTRICT OF WISCONSIN

JOSHUA A. SCHAAF,

Petitioner, OPINION AND ORDER v. 16-cv-735-wmc 12-cr-18-wmc UNITED STATES OF AMERICA,

Respondent.

Joshua A. Schaaf filed a motion seeking relief under

,1 arguing that he is entitled to a reduction in his guidelines sentence under the Supreme Court’s ruling in Johnson v. United States,

(2015), which held the vagueness of the “residual clause” in the Armed Career Criminal Act (“ACCA”),

(e)(2)(B), violated the due process clause of the Fifth Amendment. The court stayed this case pending the Supreme Court’s decision in Beckles v. United States,

(2017). After the Court concluded in Beckles that the Johnson decision did not invalidate the advisory guidelines’ residual clause, however, the government requested that the court reopen this matter and dismiss it on the merits. (Dkt. #4.) Schaaf has not objected to the government’s request that it be dismissed on the merits.

1 This was petitioner’s first motion for post-conviction relief, so he did not need the permission of a panel of the Court of Appeals for the Seventh Circuit to proceed.

(h).

1 OPINION Schaaf pled guilty to possessing a firearm following a previous felony conviction, in violation of

(g)(1). He was sentenced in July 2012 to a guidelines

sentence of 78 months in prison, to be followed by three years of supervised release. Under the advisory sentencing guidelines, USSG § 2K2.1(a)(4)(A), Schaaf’s base offense level had been increased to 20 because it was determined that he possessed the firearm after sustaining a felony conviction for a crime of violence, in violation of

(3).

In Beckles, the Supreme Court held that sentences based on advisory guidelines were not subject to challenges under Johnson. More specifically, the Court held that the sentencing guidelines are not amenable to vagueness challenges because, unlike the statute at issue in Johnson, the advisory guidelines “do not fix the permissible range of sentences,” but “merely guide the exercise of a court’s discretion in choosing an appropriate sentence within the statutory range.”

. Therefore, Beckles eliminates Schaaf’s

argument that he is entitled to relief under Johnson. Under Rule 11 of the Rules Governing Section 2255 Proceedings, the court must issue or deny a certificate of appealability when entering a final order adverse to a petitioner. To obtain a certificate of appealability, the applicant must make a “substantial showing of the denial of a constitutional right.”

(c)(2); Tennard v. Dretke,

(2004). This means that “reasonable jurists could debate whether (or,

for that matter, agree that) the petition should have been resolved in a different manner

2 or that the issues presented were adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell,

(2003) (internal quotations and citations omitted). As Schaaf appears to have conceded that his claim fails, he cannot make a substantial

showing of a denial of a constitutional right and so no certificate will issue. ORDER IT IS ORDERED that:

(1) Petitioner’s motion for post-conviction relief under

is DENIED. (2) No certificate of appealability shall issue. Petitioner may seek a certificate from the court of appeals under Fed. R. App. P. 22.

Entered this 30th day of October, 2019.

BY THE COURT:

/s/ ________________________________________ WILLIAM M. CONLEY District Judge

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