Supreme Court declines a double-jeopardy appeal over a second illegal-reentry conviction, with Sotomayor and Gorsuch questioning it
The Supreme Court declined to review Jesus Herrera-Salazar's second conviction for being found in the United States. Sotomayor and Gorsuch called it difficult to square with double jeopardy. The Justice Department says each prosecution charged a separate offense.
Case period:
Published by The Dispute Index editorial teamPublished Updated
Overview
Jesus Herrera-Salazar was convicted in 2020 of being found in the United States after removal, and was convicted of the same crime again in 2024 after police stopped him in Oklahoma while his supervised release barred him from leaving that district. The Tenth Circuit held that the two prosecutions charged separate offenses. On October 13, 2026, the Supreme Court declined to review the case. Justice Sotomayor, joined by Justice Gorsuch, agreed with the denial but wrote that the second conviction is difficult to square with the Double Jeopardy Clause. The Justice Department had argued that the lower court correctly treated each prosecution as a separate offense.
Read the full background
Federal law makes it a crime for a person who has been removed from the United States to enter again or to be "at any time found in" the country without permission (brief for the United States (opens in a new tab)). Jesus Herrera-Salazar, a Mexican citizen removed several times, was found in Brownsville, Texas, in 2020. He pleaded guilty in federal court in Texas and was sentenced to 15 months in prison and two years of supervised release (brief for the United States (opens in a new tab)).
After his release in June 2021 he lived in the Eastern District of Oklahoma, and the terms of his supervised release barred him from leaving that district. On April 1, 2022, he was arrested after a traffic stop in Heavener, Oklahoma, and indicted again for being found in the United States. A jury convicted him, and he was sentenced to 21 months in prison and three years of supervised release. He was removed from the country in 2024 after his release (statement of Justice Sotomayor (opens in a new tab); brief for the United States (opens in a new tab)).
On appeal he argued that the second prosecution put him in jeopardy twice for the same offense. A Tenth Circuit panel disagreed on September 26, 2025, holding that removal after a first "found in" prosecution is not an element of a later one, so the second charge was an independent offense (Tenth Circuit order and judgment (opens in a new tab)).
The Supreme Court denied his petition on October 13, 2026. Justice Sotomayor, joined by Justice Gorsuch, wrote that she agreed with the denial because she hopes the facts are anomalous and because he has been removed, but that the second conviction raises serious constitutional problems. The Justice Department had argued that the Tenth Circuit read the statute correctly and that its decision conflicts with no ruling of the Supreme Court or the controlling precedent of another appeals court (brief for the United States (opens in a new tab)).
People in this case
Sonia SotomayorDirectly involved
Neil GorsuchDirectly involved
Timeline
5 timeline entries on this page. Dates: May 16, 2020 to October 13, 2026
May 2020
Herrera-Salazar is charged in Texas with being found in the United States after removal
A federal grand jury in the Southern District of Texas indicted Jesus Herrera-Salazar on one count of illegal reentry, alleging he was found in the district on or about May 16, 2020, after his 2015 removal. He pleaded guilty and was sentenced to 15 months in prison and two years of supervised release.
[01]United States Department of Justice
Source excerpt
Further review is unwarranted.
The Justice Department's brief opposing Supreme Court review of Herrera-Salazar's second illegal-reentry conviction. It argues the Tenth Circuit correctly held that his Texas and Oklahoma indictments charged separate offenses.
Brief for the United States in opposition, Herrera-Salazar v. United States · United States Department of JusticeBrief for the United States in Opposition, Herrera-Salazar v. United States, No. 25-6989 (U.S. filed June 5, 2026).
April 2022
Herrera-Salazar is arrested in Oklahoma while on supervised release and charged again
After finishing his prison term in June 2021, Herrera-Salazar lived in the Eastern District of Oklahoma under supervised release that barred him from leaving the district. On April 1, 2022, he was arrested after a traffic stop in Heavener, Oklahoma, and a federal grand jury indicted him again for being found in the United States after removal.
[01]United States Department of Justice
Source excerpt
Further review is unwarranted.
The Justice Department's brief opposing Supreme Court review of Herrera-Salazar's second illegal-reentry conviction. It argues the Tenth Circuit correctly held that his Texas and Oklahoma indictments charged separate offenses.
Brief for the United States in opposition, Herrera-Salazar v. United States · United States Department of JusticeBrief for the United States in Opposition, Herrera-Salazar v. United States, No. 25-6989 (U.S. filed June 5, 2026).[02]Supreme Court of the United States
Source excerpt
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.
Statement by Justice Sonia Sotomayor, joined by Justice Neil Gorsuch, issued with the Supreme Court's October 13, 2026 denial of Jesus Herrera-Salazar's petition. It agrees with the denial and says his second illegal-reentry conviction raises serious double-jeopardy problems.
Statement of Justice Sotomayor, joined by Justice Gorsuch, respecting the denial of certiorari in Herrera-Salazar v. United States · Supreme Court of the United StatesHerrera-Salazar v. United States, No. 25-6989 (U.S. Oct. 13, 2026) (statement of Sotomayor, J., respecting the denial of certiorari).
September 2025
Tenth Circuit upholds the second conviction and rejects the double-jeopardy claim
After a jury convicted Herrera-Salazar in 2024 and he was sentenced to 21 months in prison and three years of supervised release, a Tenth Circuit panel of Judges McHugh, Murphy and Moritz affirmed in an unpublished order and judgment. It held that the 2022 charge was an independent offense under the illegal-reentry statute, so the second prosecution did not violate the Double Jeopardy Clause.
[03]Tenth Circuit order and judgment affirming Herrera-Salazar's second illegal-reentry conviction
Source excerpt
The prosecution, conviction, and punishment for his conduct on April 1, 2022, was not a double jeopardy violation.
Unpublished Tenth Circuit decision affirming Herrera-Salazar's 2024 conviction and rejecting his double-jeopardy claim, filed as an exhibit in the Supreme Court record.
Tenth Circuit order and judgment affirming Herrera-Salazar's second illegal-reentry convictionUnited States v. Herrera-Salazar, No. 24-7029 (10th Cir. Sept. 26, 2025) (unpublished order and judgment), as filed in the Supreme Court record.[01]United States Department of Justice
Source excerpt
Further review is unwarranted.
The Justice Department's brief opposing Supreme Court review of Herrera-Salazar's second illegal-reentry conviction. It argues the Tenth Circuit correctly held that his Texas and Oklahoma indictments charged separate offenses.
Brief for the United States in opposition, Herrera-Salazar v. United States · United States Department of JusticeBrief for the United States in Opposition, Herrera-Salazar v. United States, No. 25-6989 (U.S. filed June 5, 2026).
June 2026
Justice Department opposes Supreme Court review
After Herrera-Salazar petitioned the Supreme Court on March 4, 2026, and the Court requested a response, the Justice Department filed a brief arguing that the Tenth Circuit read the statute correctly and that further review was unwarranted.
[01]United States Department of Justice
Source excerpt
Further review is unwarranted.
The Justice Department's brief opposing Supreme Court review of Herrera-Salazar's second illegal-reentry conviction. It argues the Tenth Circuit correctly held that his Texas and Oklahoma indictments charged separate offenses.
Brief for the United States in opposition, Herrera-Salazar v. United States · United States Department of JusticeBrief for the United States in Opposition, Herrera-Salazar v. United States, No. 25-6989 (U.S. filed June 5, 2026).[04]Supreme Court of the United States
Source excerpt
Petition DENIED.
The Supreme Court's docket for Herrera-Salazar's petition, listing the petition, the government's waiver and later brief in opposition, the reply, the conference dates and the October 13, 2026 denial.
Supreme Court docket for Herrera-Salazar v. United States, No. 25-6989 · Supreme Court of the United StatesSupreme Court docket No. 25-6989, entries from January 2 to October 13, 2026.
October 2026
Supreme Court denies review; Sotomayor and Gorsuch question the second conviction
The Supreme Court denied Herrera-Salazar's petition. Justice Sotomayor, joined by Justice Gorsuch, wrote a statement agreeing with the denial because the facts may be anomalous and Herrera-Salazar has been removed, while saying his second conviction raises serious double-jeopardy problems.
[02]Supreme Court of the United States
Source excerpt
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.
Statement by Justice Sonia Sotomayor, joined by Justice Neil Gorsuch, issued with the Supreme Court's October 13, 2026 denial of Jesus Herrera-Salazar's petition. It agrees with the denial and says his second illegal-reentry conviction raises serious double-jeopardy problems.
Statement of Justice Sotomayor, joined by Justice Gorsuch, respecting the denial of certiorari in Herrera-Salazar v. United States · Supreme Court of the United StatesHerrera-Salazar v. United States, No. 25-6989 (U.S. Oct. 13, 2026) (statement of Sotomayor, J., respecting the denial of certiorari).[04]Supreme Court of the United States
Source excerpt
Petition DENIED.
The Supreme Court's docket for Herrera-Salazar's petition, listing the petition, the government's waiver and later brief in opposition, the reply, the conference dates and the October 13, 2026 denial.
Supreme Court docket for Herrera-Salazar v. United States, No. 25-6989 · Supreme Court of the United StatesSupreme Court docket No. 25-6989, entries from January 2 to October 13, 2026.
Claims
Claims separate what was said from what is contested. Follow each source for the original wording and context.
What's disputed
Disputed claim
Herrera-Salazar's second conviction for being found in the United States, brought while the terms of his first sentence barred him from leaving the country, is difficult to square with the Double Jeopardy Clause.
Sources (1)
- Statement of Justice Sotomayor, joined by Justice Gorsuch, respecting the denial of certiorari in Herrera-Salazar v. United States · Supreme Court of the United StatesHerrera-Salazar v. United States, No. 25-6989 (U.S. Oct. 13, 2026) (statement of Sotomayor, J., respecting the denial of certiorari).
Disputed claim
United States Department of Justice
Herrera-Salazar's Texas and Oklahoma prosecutions charged separate offenses, because the illegal-reentry statute does not require a new removal and reentry before each prosecution for being found in the United States.
Sources (1)
- Brief for the United States in opposition, Herrera-Salazar v. United States · United States Department of JusticeBrief for the United States in Opposition, Herrera-Salazar v. United States, No. 25-6989 (U.S. filed June 5, 2026).
Response record
Responses
Choose one response filter, or select All responses to see the full record.
3 responses. Newest first.
Sonia SotomayorAssociate justice of the Supreme Court, in a statement respecting the denial of certiorari, joined by Justice GorsuchDirectly involvedBefore this statement
The Supreme Court denied Herrera-Salazar's petition for review on October 13, 2026.
"After being once convicted and punished for being found in the United States and, as part of his original sentence, prohibited from leaving the United States, Herrera-Salazar was convicted and punished for being found in the United States a second time. ... 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."
CondemnedCase context: Supreme Court declines a double-jeopardy appeal over a second illegal-reentry conviction, with Sotomayor and Gorsuch questioning it
Full statement and sources
Justice Sonia Sotomayor, joined by Justice Neil Gorsuch, wrote that Herrera-Salazar was convicted and punished a second time for being found in the United States after his first sentence barred him from leaving the country. She said the second conviction is difficult to square with the Double Jeopardy Clause and urged courts facing similar cases to avoid what she called a constitutional absurdity.
After the statement
Sotomayor wrote that she concurred in the denial because she hopes the facts of the case are anomalous and because Herrera-Salazar has since been removed from the United States.
Statement of Justice Sotomayor, joined by Justice Gorsuch, respecting the denial of certiorari in Herrera-Salazar v. United States · Supreme Court of the United StatesHerrera-Salazar v. United States, No. 25-6989 (U.S. Oct. 13, 2026) (statement of Sotomayor, J., respecting the denial of certiorari).Why this label?
The reference point is the federal government's second prosecution and conviction of Jesus Herrera-Salazar for being found in the United States, brought while the terms of his first sentence barred him from leaving the country. Sotomayor says the second conviction is difficult to square with the Double Jeopardy Clause and calls the result a constitutional absurdity, so we used Condemned. The closest competing label is Mixed or conditional, because she agreed with denying review; it loses because she agreed only because she hopes the facts are anomalous and because Herrera-Salazar has been removed, not because she accepts the second prosecution.
This label describes the statement's response within the context above.
Neil GorsuchAssociate justice of the Supreme Court, joining a statement respecting the denial of certiorariDirectly involvedBefore this statement
The Supreme Court denied Herrera-Salazar's petition for review on October 13, 2026.
"Action: Joined Justice Sotomayor's statement respecting the denial of certiorari in Herrera-Salazar v. United States."
CondemnedCase context: Supreme Court declines a double-jeopardy appeal over a second illegal-reentry conviction, with Sotomayor and Gorsuch questioning it
Full statement and sources
Justice Neil Gorsuch joined Justice Sonia Sotomayor's statement respecting the Supreme Court's denial of review, which says Herrera-Salazar's second conviction for being found in the United States is difficult to square with the Double Jeopardy Clause.
After the statement
Gorsuch did not write separately.
Statement of Justice Sotomayor, joined by Justice Gorsuch, respecting the denial of certiorari in Herrera-Salazar v. United States · Supreme Court of the United StatesHerrera-Salazar v. United States, No. 25-6989 (U.S. Oct. 13, 2026) (statement of Sotomayor, J., respecting the denial of certiorari).Why this label?
The reference point is the federal government's second prosecution and conviction of Jesus Herrera-Salazar for being found in the United States, brought while the terms of his first sentence barred him from leaving the country. Gorsuch joined a statement that calls the second conviction difficult to square with the Double Jeopardy Clause and a constitutional absurdity, so we used Condemned. The closest competing label is Mixed or conditional, because the statement agrees with denying review; it loses because that agreement rests on the case's unusual facts and Herrera-Salazar's removal, not on approval of the second prosecution.
This label describes the statement's response within the context above.
United States Department of JusticeFederal department prosecuting the case, in the Solicitor General's brief opposing Supreme Court reviewDirectly involvedBefore this statement
The Justice Department first waived its right to respond to the petition, and filed this brief after the Supreme Court requested a response in April 2026.
"Further review is unwarranted. ... After considering the statutory text, the court of appeals correctly determined that the indictment in the Southern District of Texas and the indictment in the Eastern District of Oklahoma charged petitioner with separate offenses."
Defended or excusedCase context: Supreme Court declines a double-jeopardy appeal over a second illegal-reentry conviction, with Sotomayor and Gorsuch questioning it
Full statement and sources
The Justice Department, in the Solicitor General's brief opposing Supreme Court review, said the Tenth Circuit correctly held that Herrera-Salazar's Texas and Oklahoma indictments charged separate offenses under the illegal-reentry statute, and that further review was unwarranted.
After the statement
The brief was filed on June 5, 2026, by Solicitor General D. John Sauer and Justice Department attorneys.
Brief for the United States in opposition, Herrera-Salazar v. United States · United States Department of JusticeBrief for the United States in Opposition, Herrera-Salazar v. United States, No. 25-6989 (U.S. filed June 5, 2026).Why this label?
The reference point is the federal government's second prosecution and conviction of Jesus Herrera-Salazar for being found in the United States, brought while the terms of his first sentence barred him from leaving the country. The Justice Department argues that the lower court correctly treated the two indictments as separate offenses and that the Supreme Court should not review the case, so we used Defended or excused. The closest competing label is Challenged characterization, because it disputes that the charges were for the same offense; it loses because it defends the second prosecution itself.
This label describes the statement's response within the context above.
Sources
(4)
Original text
Statement of Justice Sotomayor, joined by Justice Gorsuch, respecting the denial of certiorari in Herrera-Salazar v. United States
Relevant passage: Herrera-Salazar v. United States, No. 25-6989 (U.S. Oct. 13, 2026) (statement of Sotomayor, J., respecting the denial of certiorari).
Excerpt
"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."
About this source
Statement by Justice Sonia Sotomayor, joined by Justice Neil Gorsuch, issued with the Supreme Court's October 13, 2026 denial of Jesus Herrera-Salazar's petition. It agrees with the denial and says his second illegal-reentry conviction raises serious double-jeopardy problems.
- Author
- Justice Sonia Sotomayor, joined by Justice Neil Gorsuch
- Published
- Accessed
Original text
Supreme Court docket for Herrera-Salazar v. United States, No. 25-6989
Relevant passage: Supreme Court docket No. 25-6989, entries from January 2 to October 13, 2026.
Excerpt
"Petition DENIED."
About this source
The Supreme Court's docket for Herrera-Salazar's petition, listing the petition, the government's waiver and later brief in opposition, the reply, the conference dates and the October 13, 2026 denial.
- Author
- Supreme Court of the United States
- Published
- Accessed
Original text
Tenth Circuit order and judgment affirming Herrera-Salazar's second illegal-reentry conviction
Relevant passage: United States v. Herrera-Salazar, No. 24-7029 (10th Cir. Sept. 26, 2025) (unpublished order and judgment), as filed in the Supreme Court record.
Excerpt
"The prosecution, conviction, and punishment for his conduct on April 1, 2022, was not a double jeopardy violation."
About this source
Unpublished Tenth Circuit decision affirming Herrera-Salazar's 2024 conviction and rejecting his double-jeopardy claim, filed as an exhibit in the Supreme Court record.
- Author
- U.S. Court of Appeals for the Tenth Circuit (Judges McHugh, Murphy and Moritz)
- Published
- Accessed
Original text
Brief for the United States in opposition, Herrera-Salazar v. United States
Relevant passage: Brief for the United States in Opposition, Herrera-Salazar v. United States, No. 25-6989 (U.S. filed June 5, 2026).
Excerpt
"Further review is unwarranted."
About this source
The Justice Department's brief opposing Supreme Court review of Herrera-Salazar's second illegal-reentry conviction. It argues the Tenth Circuit correctly held that his Texas and Oklahoma indictments charged separate offenses.
- Author
- D. John Sauer, Solicitor General, and Justice Department attorneys
- Published
- Accessed
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- The Dispute Index
- Title
- Supreme Court declines a double-jeopardy appeal over a second illegal-reentry conviction, with Sotomayor and Gorsuch questioning it
- First published
- Last updated
- Permalink
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The Dispute Index. "Supreme Court declines a double-jeopardy appeal over a second illegal-reentry conviction, with Sotomayor and Gorsuch questioning it". First published: 2026-10-14. Last updated: 2026-10-14. https://disputeindex.com/cases/herrera-salazar-double-jeopardy-second-illegal-reentry-conviction