Justice Department says Herrera-Salazar's two prosecutions charged separate offenses
United States Department of JusticeFederal department prosecuting the case, in the Solicitor General's brief opposing Supreme Court review
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.
“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.”
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
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.
Before the quotation
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.
After the quotation
The brief was filed on June 5, 2026, by Solicitor General D. John Sauer and Justice Department attorneys.
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. 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.
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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
Sotomayor says Herrera-Salazar's second conviction raises serious double-jeopardy problems
“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.”Read statement
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The Dispute Index. "Justice Department says Herrera-Salazar's two prosecutions charged separate offenses". First published: 2026-10-14. Last updated: 2026-10-14. https://disputeindex.com/events/5744-the-justice-department-in-the-solicitor-general-s