Liberal Supreme Court Justice Sonia Sotomayor and conservative Justice Neil Gorsuch united Tuesday in criticizing what they described as “serious constitutional problems” in the prosecution of a Mexican man convicted twice of illegally re-entering the United States.
The Supreme Court declined to hear Jesus Herrera-Salazar’s appeal, partly because he has already been deported. Still, Sotomayor and Gorsuch said they “hope the facts of this case are anomalous,” signaling deep concern about how the case was handled.
Herrera-Salazar was first arrested in 2020 and pleaded guilty to illegally returning to the US after removal. He served part of a prison sentence before being released under supervision.
Although he was required to remain in the United States, Herrera-Salazar was arrested during a traffic stop in Oklahoma. He was then indicted and convicted for the same offense.
“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,” Sotomayor wrote in a brief opinion joined by Gorsuch. She said the circumstances placed Herrera-Salazar in a “Hobson’s choice.”
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“In the Government’s eyes, whether Herrera-Salazar remained in the Eastern District of Oklahoma or left the United States [after his first release from prison], he would be breaking the law,” the justices wrote. “While Herrera-Salazar was caught in this bind, the Government prosecuted and punished him yet again for being ‘found in’ the United States, even though all agree he was forbidden to leave the United States.”
Court records show that Herrera-Salazar completed both sentences and was deported to Mexico in 2024.
His lawyers argued that the second case violated the Fifth Amendment’s protection against being tried twice for the same offense.
The Denver-based 10th US Circuit Court of Appeals rejected that claim, ruling that the two convictions were for separate offenses.
Sotomayor and Gorsuch challenged that conclusion, cautioning that the government should not be permitted to prosecute a person twice for the same ongoing criminal conduct.
“[O]ur precedents and the logic of the Double Jeopardy Clause,” the justices wrote, “strongly suggest that the Government is barred from charging that defendant with the same continuous crime for a second time simply by focusing on a different time marker.”
