A Mexican immigrant who was indicted twice under the same federal reentry law after a 2022 traffic stop in Heavener, Oklahoma, has drawn a pointed rebuke from two U.S. Supreme Court justices, who say his second prosecution raised serious constitutional problems. Jesus Herrera-Salazar was first indicted by a federal grand jury in 2020 for being found in the United States after a prior removal, and a second grand jury indicted him again in 2023 under the same statute, 8 U.S.C. § 1326, for continuing to be found in the country.
The Supreme Court denied Herrera-Salazar's petition asking the justices to review and reverse his second conviction, according to Cornell Law School's Legal Information Institute, which published the order stating simply that the petition for a writ of certiorari is denied. But Justice Sonia Sotomayor, joined by Justice Neil Gorsuch, issued a statement explaining that the court's refusal to hear the case should not be read as approval of what happened to Herrera-Salazar. As reported by KOSU, Sotomayor and Gorsuch condemned the double prosecution of an immigrant in Eastern Oklahoma, questioning whether the lower courts had given the Double Jeopardy Clause its full weight and meaning.
A Single Reentry, Two Federal Prosecutions
Herrera-Salazar pleaded guilty in 2020 to being found in the United States following a prior removal and served a prison sentence in Texas, according to court records published by CourtListener. He was then sent to Oklahoma on supervised release in 2021, with the government explicitly instructing him not to leave the Eastern District of Oklahoma. That instruction effectively froze him in place, since the government also forbade him from leaving the country, and treated him as breaking the law whether he remained or left, per the same court filing.
While still on that supervised release, Herrera-Salazar was pulled over during a traffic stop in Heavener in 2022. Officers reported finding methamphetamine in the car, but the drug charges stemming from that stop were later dismissed, the court record notes. Instead, a federal grand jury indicted him again in 2023, this time charging him once more under §1326(a) for being found in the United States — the same statute used in his original 2020 case. A jury convicted him on that second charge, and he was sentenced to 21 months in prison followed by three years of probation, according to Courthouse News Service.
Sotomayor Warns of a 'Constitutional Absurdity'
In her statement, Sotomayor wrote that the government cannot charge a defendant twice for the same continuous crime simply by pointing to a different time marker — treating a single ongoing presence in the country as though it were two separate offenses. The Double Jeopardy Clause generally prohibits punishing a person twice for the same offense once they have already been convicted, and Sotomayor said Herrera-Salazar was convicted and punished for being found in the United States a second time despite that protection, per the courtroom filing hosted by CourtListener.
She went further, warning that the government's position could, in theory, allow prosecutors to bring a separate §1326(a) charge for every single day someone remained in the country under government supervision, according to the Cornell Law filing. Sotomayor also described the bind Herrera-Salazar found himself in as a kind of Hobson's choice: whether he stayed in the Eastern District of Oklahoma as ordered or left the United States entirely, the government treated either option as a violation of the law, the CourtListener record states.
Sotomayor said she encouraged courts going forward to avoid repeating what she called the constitutional absurdity that occurred in Herrera-Salazar's case, and to give the Double Jeopardy Clause its full weight and meaning. She added that she hoped the facts of this case were anomalous, noting that Herrera-Salazar has since been removed from the United States — a detail she said factored into the justices' decision not to take up his appeal, per the same filing.
A Circuit Split Still Unresolved
Herrera-Salazar's petition to the Supreme Court argued that the facts and procedural history of his case were simple, straightforward and essentially undisputed, and that one reentry had produced two separate federal prosecutions under the same statute. The petition also warned that the ambiguity in how courts interpret the “found in” offense could complicate future cases, and predicted that similar prosecutions would likely recur given the scale of ongoing immigration enforcement.
That warning is rooted in a real disagreement among federal appeals courts. The Tenth Circuit's ruling in Herrera-Salazar's case, filed on September 26, 2025, according to a decision published by Leagle, directly conflicts with rulings from the Fifth, Seventh and Ninth Circuits over whether being found in the United States counts as a continuing offense or a completed one, Courthouse News reported. Attorney Blain Myhre, who represented Herrera-Salazar, wrote that the government had failed to resolve similar conflicts across the separate circuits, leaving the legal question open even after the Supreme Court declined to weigh in.
The case lands against a backdrop of heavy federal enforcement of entry-related immigration offenses. Prosecutions for those crimes hit an all-time high of 106,312 in fiscal year 2019, according to the American Immigration Council, before falling sharply to 14,297 in fiscal year 2021 after the government shifted toward rapidly expelling people at the border rather than referring them for criminal charges.
Sotomayor was appointed to the Supreme Court by former President Barack Obama, while Gorsuch, who joined her statement, was appointed by President Donald Trump. Their joint statement signals bipartisan unease on the court over how the “found in” statute has been applied, even as the underlying circuit split remains unresolved for now.
