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`FILED: January 14, 2021
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`UNITED STATES COURT OF APPEALS
`FOR THE FOURTH CIRCUIT
`
`___________________
`
`No. 20-15
`(3:92-cr-00068-DJN-2)
`___________________
`
`UNITED STATES OF AMERICA
`
` Plaintiff - Appellee
`
`v.
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`COREY JOHNSON, a/k/a O, a/k/a CO
`
` Defendant - Appellant
`
`
`___________________
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`No. 21-1
`(3:92-cr-00068-DJN-2)
`(3:20-cv-00957-DJN)
`___________________
`
`
`UNITED STATES OF AMERICA
`
` Plaintiff - Appellee
`
`v.
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`COREY JOHNSON, a/k/a O, a/k/a CO
`
` Defendant - Appellant
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`------------------------------
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`THE CONSTITUTION PROJECT AT THE PROJECT ON GOVERNMENT
`OVERSIGHT
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` Amicus Supporting Appellant
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`
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`___________________
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`O R D E R
`___________________
`
`
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`The Court denies the petition for rehearing en banc for Case Nos. 20-15 and 21-1.
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`A requested poll of the Court failed to produce a majority of judges in regular active
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`service and not disqualified who voted in favor of rehearing en banc. Judge Wilkinson,
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`Judge Niemeyer, Judge Agee, Judge Diaz, Judge Floyd, Judge Richardson, Judge
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`Quattlebaum, and Judge Rushing voted to deny rehearing en banc. Chief Judge Gregory,
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`Judge Motz, Judge King, Judge Keenan, Judge Wynn, Judge Thacker, and Judge Harris
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`voted to grant rehearing en banc.
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`Judge Wilkinson wrote a separate opinion concurring in the denial of rehearing en
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`banc. Judge Wynn wrote a separate opinion dissenting from the denial of rehearing en banc.
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`Entered at the direction of Judge Wilkinson.
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`For the Court
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`/s/ Patricia S. Connor, Clerk
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`2
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`WILKINSON, Circuit Judge, concurring in the denial of rehearing en banc:
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`The reasons for my vote are set forth in my statement accompanying the panel’s
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`order denying the stay of execution.
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`3
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`WYNN, Circuit Judge, dissenting from the denial of rehearing en banc:
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`Corey Johnson is an intellectually disabled death row inmate who is scheduled to
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`be executed later today at 6 p.m. EST. His emergency motion to stay execution was denied
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`by a panel of this Court, and he seeks a rehearing en banc. Because Johnson has at least
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`two potentially meritorious claims against his execution, I respectfully dissent from the
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`denial of rehearing en banc.
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`In 20-15, Johnson seeks reconsideration of his death sentence under the First Step
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`Act. He was sentenced to death for the murders he had committed in relation to crack
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`cocaine distribution, in violation of 21 U.S.C. § 848(e). Under Fourth Circuit precedent,
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`his convictions under § 848(e) are “covered offenses” for purposes of the First Step Act.
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`See, e.g., United States v. Wirsing, 943 F.3d 175, 186 (4th Cir. 2019); United States v.
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`Woodson, 962 F.3d 812, 816 (4th Cir. 2020); United States v. Chambers, 956 F.3d 667,
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`670 (4th Cir. 2020). Therefore, Johnson is legally entitled to reconsideration of his
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`sentence, and the sentencing judge must properly consider factors including the
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`overwhelming evidence of his intellectual disability and his excellent prison record. The
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`district court clearly erred in holding that he would not be entitled to a sentence reduction
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`even if his convictions were “covered” by the First Step Act.
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`In 21-1, Johnson makes a compelling statutory argument that the Federal Death
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`Penalty Act, 18 U.S.C. § 3596(c), prohibits his execution. Under § 3596(c), a death
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`sentence “shall not be carried out upon a person who is mentally retarded.” The plain text,
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`structure, and history of the statute seem to clearly indicate Congress’s intent to allow an
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`inquiry at the time of execution. Although Johnson fell just 2 points short (77) of the IQ
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`4
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`threshold for intellectual disability (70–75) in 1993, the newly available evidence
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`convincingly demonstrates that his old IQ score is incorrect and that he is intellectually
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`disabled under current diagnostic standards. But no court has ever considered such
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`evidence. If Johnson’s death sentence is carried out today, the United States will execute
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`an intellectually disabled person, which is unconstitutional.
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`In sum, Johnson should be afforded an opportunity to have his meritorious claims
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`properly considered and to vindicate his rights. And contrary to the Government, he is not
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`making a “last-minute” attempt to unduly delay his execution. He has timely pursued his
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`challenges under both the First Step Act and the Federal Death Penalty Act. If anything,
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`these emergency motions became necessary only because the Government scheduled his
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`execution while his First Step Act claim was being litigated. Therefore, I vote to grant his
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`petition for rehearing en banc.
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`5
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