Liberal Supreme Court Justice Sonia Sotomayor and her conservative colleague Neil Gorsuch joined forces Tuesday to slam what they called “serious constitutional problems” with the prosecution of a Mexican national convicted twice of illegally re-entering the US.
The high court rejected Jesus Herrera-Salazar’s request to review his case, in part because he has already been deported, but Sotomayor and Gorsuch made clear they “hope the facts of this case are anomolous.”
Herrera-Salazar was initially arrested in 2020, pleaded guilty to illegally re-entering the US following removal, and spent some time in prison before being placed on supervised release.
While Herrera-Salazar was required to remain in the US, he was arrested after a traffic stop in Oklahoma and 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, adding that the circumstances of the case left Herrera-Salazar facing a “Hobson’s choice.”
“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 explained. “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.”
After serving both sentences, Herrera-Salazar was deported to Mexico in 2024, according to court documents.
His attorneys had argued that the second prosecution violated his Fifth Amendment right not to be tried twice for the same offense.
But the Denver-based 10th US Circuit Court of Appeals rejected that argument, finding that the two convictions involved separate offenses.
Sotomayor and Gorsuch disagreed with the lower court’s reasoning, warning that the government should not be able to prosecute someone twice for the same continuous criminal conduct.
“[O]ur precedents and the logic of the Double Jeopardy Clause,” they 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.”
