Sotomayor says Herrera-Salazar's second conviction raises serious double-jeopardy problems
Sonia SotomayorAssociate justice of the Supreme Court, in a statement respecting the denial of certiorari, joined by Justice Gorsuch
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 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.”
Original text
Where this statement fits
Supreme Court declines a double-jeopardy appeal over a second illegal-reentry conviction, with Sotomayor and Gorsuch questioning it
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.
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Original text
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.
Before the quotation
The Supreme Court denied Herrera-Salazar's petition for review on October 13, 2026.
After the quotation
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.
How this statement is classified
The label describes this statement's response within the context above.
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.
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More from this case
Read the full caseGorsuch joins Sotomayor's statement questioning Herrera-Salazar's second conviction
“Action: Joined Justice Sotomayor's statement respecting the denial of certiorari in Herrera-Salazar v. United States.”Read statement
Justice Department says Herrera-Salazar's two prosecutions charged separate offenses
United States Department of Justice
“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.”Read statement
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The Dispute Index. "Sotomayor says Herrera-Salazar's second conviction raises serious double-jeopardy problems". First published: 2026-10-14. Last updated: 2026-10-14. https://disputeindex.com/events/5742-justice-sonia-sotomayor-joined-by-justice-neil-gorsuch