Key Points

  • The Supreme Court denied certiorari in Herrera-Salazar v. United States, No. 25-6989, on Oct. 13, 2026, leaving in place a Tenth Circuit ruling that rejected the petitioner's double jeopardy challenge.
  • Justice Sotomayor, joined by Justice Gorsuch, wrote a statement respecting the denial that called a second 8 U.S.C. §1326(a) "found in" conviction, imposed while the government barred the defendant from leaving the country, difficult to square with the Double Jeopardy Clause.
  • The statement questioned whether "found in" can reach a person already found and compelled to remain under government supervision, and relied on Brown v. Ohio and In re Nielsen to treat the offense as continuous.
  • Justice Sotomayor concurred in the denial because she hoped the facts were anomalous and because the petitioner has since been removed, and she encouraged lower courts to give the Double Jeopardy Clause its full weight in similar cases.

The Supreme Court declined on Oct. 13 to review the case of a man convicted twice of being unlawfully present in the United States after removal. Two justices wrote that his second conviction was "difficult to square with the Constitution" because the government had forbidden him to leave the country while he served his first sentence.

Justice Sotomayor, joined by Justice Gorsuch, wrote a statement respecting the denial of certiorari. She agreed with the Court's decision not to grant review but wrote "to underscore the serious constitutional problems that plague the Government's treatment of Herrera-Salazar." The court denied the petition in a one-sentence order that gave no reasons.

The denial leaves in place a ruling by the U.S. Court of Appeals for the Tenth Circuit that rejected Jesus Herrera-Salazar's double jeopardy challenge to his second conviction. Under the appeals court's reasoning, as Justice Sotomayor described it, a person in his position "can be subjected to repeated, limitless 'found in' charges without offending the Constitution." The two justices urged lower courts that see similar prosecutions to reach a different result.

Herrera-Salazar was indicted in 2020 on one count of being "found in" the United States following removal, in violation of 8 U.S.C. §1326(a). He pleaded guilty and served his prison term. He then began supervised release and was expressly instructed not to leave the Eastern District of Oklahoma.

While he was on supervised release, he was pulled over in a traffic stop in Heavener, Oklahoma. He was arrested and indicted a second time under §1326(a). A jury convicted him, and he was sentenced to new terms of imprisonment and supervised release.

Herrera-Salazar challenged the second prosecution under the Fifth Amendment's Double Jeopardy Clause, under which a person may not "be subject for the same offence to be twice put in jeopardy of life or limb." The Tenth Circuit looked to the text of §1326(a) and to its "allowable unit of prosecution," a phrase from the Supreme Court's 1978 decision in Sanabria v. United States. Because that unit did not require a separate reentry for each violation, the Tenth Circuit concluded, each of the two prosecutions was for a separate offense.

Justice Sotomayor first questioned whether the statute reaches Herrera-Salazar's situation at all. It is not clear, she wrote, that the words "found in . . . the United States" can "fairly be read to encompass a person who has already been found by the Government and compelled to remain in the United States under Government supervision."

Even if the statute does apply, she wrote, the second conviction raised a constitutional problem. She cited the court's 2018 decision in Currier v. Virginia for the principle that "the Double Jeopardy Clause protects against a second prosecution for the same offense after conviction." The question in a case like Herrera-Salazar's, she wrote, "is what constitutes the 'same offense.'"

For that question she turned to Brown v. Ohio, a 1977 decision in which the court recognized a double jeopardy violation where a defendant faced two charges based on two points in time during a continuous "9-day joyride." Justice Sotomayor quoted that decision's warning that "the Double Jeopardy Clause is not such a fragile guarantee that prosecutors can avoid its limitations by the simple expedient of dividing a single crime into a series of temporal or spatial units." She then wrote, "Yet that is just what the Government did here."

Herrera-Salazar's offense, she wrote, was "a crime which was continuous, extending over the whole period" he was present in the country after his removal and reentry, borrowing language from In re Nielsen, an 1889 decision. That crime "plainly could not have concluded until the Government allowed Herrera-Salazar to leave the country," she wrote. It was therefore still under way at the time of his second arrest.

The statement then described the consequences of the government's position. Quoting Nielsen, Justice Sotomayor wrote that if prosecutors could split a continuous crime, there might be "an indictment covering every week." She wrote that the objection has "even more force" when the government "effectively forbids the defendant to cease his unlawful conduct." Under the government's reasoning, she wrote, prosecutors "might have charged Herrera-Salazar with a separate violation of §1326(a) for each day that he was 'found in' prison while serving his sentence for the first conviction." She called that result absurd but "a logical outgrowth of the Government's contention" that the second conviction posed no double jeopardy problem.

In the statement's final section, Justice Sotomayor wrote that from the moment Herrera-Salazar left custody after his first prison term, he "was presented with a Hobson's choice." "In the Government's eyes, whether Herrera-Salazar remained in the Eastern District of Oklahoma or left the United States, he would be breaking the law," she wrote.

She gave two reasons for agreeing that the court should not take the case. She wrote that she hoped "the facts of this case are anomalous," and she noted that Herrera-Salazar "has since been removed from the United States."

The statement closed with a message to lower courts. "Should circumstances like these arise again, I encourage courts to avoid the constitutional absurdity that occurred here and give the Double Jeopardy Clause its full weight and meaning," Justice Sotomayor wrote.

The order ends Herrera-Salazar's case at the Supreme Court and leaves the Tenth Circuit's ruling against him in place.