The Supreme Court on Tuesday refused to take up a challenge to a second federal prosecution for being “found in” the United States, leaving intact a prison term that two justices said raises serious double jeopardy problems.
Courthouse News reported that Jesus Herrera-Salazar, an immigrant from Mexico, asked the justices to throw out a later conviction under 8 U.S.C. § 1326(a) after he had already served time on the same statute. The full Court denied review. Justice Sonia Sotomayor, joined by Justice Neil Gorsuch, agreed with that denial but warned about the government’s theory of repeated “found in” charges.
The fight is not abstract. It tests how far federal prosecutors may slice a continuous unlawful presence into multiple crimes, and whether the Double Jeopardy Clause still blocks that tactic when immigration supervision keeps a defendant inside the country.
Herrera-Salazar was first deported on Feb. 12, 2015. He later reentered the United States knowingly and was apprehended by Border Patrol agents near Brownsville, Texas.
Prosecutors charged him with being unlawfully found in the country after deportation. He pleaded guilty to one count and received 15 months in prison and two years of probation.
He was released in June 2021. Authorities barred him from returning to Mexico and ordered him to remain within Oklahoma while on probation. That supervision left him inside the United States under government direction.
On April 1, 2022, he was arrested again in Heavener, Oklahoma, and charged once more with a “found in” count under the same statute. The government treated the new case as a separate violation of the same law.
Herrera-Salazar moved to dismiss the second indictment. The motion failed. A jury convicted him, and the court imposed 21 months in prison and three years of probation.
He appealed to the Tenth Circuit and argued that the second prosecution violated double jeopardy protections. The Tenth Circuit rejected that claim and affirmed the sentence.
Courthouse News reported that the Tenth Circuit’s approach created a split with the Fifth, Seventh, and Ninth Circuits. Those courts have treated the offense as completed when a defendant is “found,” meaning when arrested, and have not blessed the same repeated-charge theory in the same way.
Herrera-Salazar then petitioned the Supreme Court. He asked the justices to overturn the second prison term as a clear double jeopardy violation after he had already served a term roughly two years earlier.
The Court declined to hear the case. Denial of certiorari is not a ruling on the merits. It leaves the Tenth Circuit decision in place for Herrera-Salazar without creating nationwide Supreme Court precedent on the question.
Sotomayor, a Barack Obama appointee, wrote a statement respecting the denial. Gorsuch joined her. They concurred in the decision not to review the case while spotlighting what they described as “serious constitutional problems that plague the government’s treatment of Herrera-Salazar.”
The Washington Examiner likewise reported that Sotomayor and Gorsuch jointly criticized the repeated prosecution and pointed to the constitutional absurdity of the two indictments tied to his arrests.
Sotomayor framed the bind created by probation and immigration rules in blunt terms.
"From the moment he was released from custody after serving his first term of imprisonment, Herrera-Salazar was presented with a Hobson’s choice,"
She continued that, in the government’s view, staying in the Eastern District of Oklahoma or leaving the United States would both break the law, and that officials still prosecuted him again for being “found in” the country even though all agreed he was forbidden to leave.
Section 1326(a) criminalizes reentry by removed migrants and reaches a person who is “found in” the United States. The statutory phrase sat at the center of the dispute.
Sotomayor said the “found in” language did not seem to clearly cover someone the government had already found and then compelled to remain under supervision. Even assuming a broad reading of the statute, she wrote, the second conviction is “difficult to square” with the Double Jeopardy Clause.
She warned that the government’s theory would allow limitless recycling of charges from one unlawful reentry.
"By those lights, with a single unlawful reentry supplying the necessary statutory predicate, a person in Herrera-Salazar’s shoes can be subjected to repeated, limitless ‘found in’ charges without offending the Constitution,"
She added, “Yet that is just what the government did here.”
In her account, the underlying crime was continuous for the whole period he remained after the prior removal and reentry. That continuous offense, she wrote, could not have ended until the government allowed him to leave the country.
"Herrera-Salazar was convicted of a ‘crime which was continuous, extending over the whole period’ he was present in the United States after his previous removal and reentry. That continuous crime plainly could not have concluded until the government allowed Herrera-Salazar to leave the country."
She also rejected the idea that prosecutors may carve one continuous crime into many counts by timing and location. The double jeopardy right, she said, is not “such a fragile guarantee.” Adopting the government’s approach, she warned, could mean indictments for every week of a continuous crime, and in a case like this even daily “found in” charges while a defendant sat in prison.
She urged lower courts facing similar facts to avoid that “constitutional absurdity” and to “give the double jeopardy clause its full weight and meaning.”
The Court’s refusal to hear the case leaves several practical questions open beyond Herrera-Salazar’s own sentence. Investigators and courts in other circuits will still have to determine how to charge continuous presence after a prior “found in” conviction when supervision forces a defendant to stay.
Authorities have not, in the public account of this denial, issued a new nationwide charging rule. The Tenth Circuit affirmance stands in that circuit. The reported conflict with the Fifth, Seventh, and Ninth Circuits remains for another petition, another record, or further appellate development to resolve.
No public release in the materials identifies a docket number, full case caption, or the precise calendar date behind the “Tuesday” denial beyond that relative reference. The operative result is still clear: the second conviction and 21-month term were left undisturbed.
Federal law still prohibits unlawful reentry and being found in the United States after removal. Herrera-Salazar’s first guilty plea, first sentence, second jury conviction, and second sentence all reflect that enforcement framework as applied in his case.
The constitutional fight is over stacking successive “found in” prosecutions when the defendant never left and was ordered to remain. Sotomayor and Gorsuch described that stacking theory as a path to repeated punishment for one continuous crime. The government maintained it was prosecuting separate violations.
For conservatives who want both secure borders and a government that stays inside constitutional lanes, the case lands on a familiar fault line. Immigration statutes are tools of sovereignty. Double jeopardy is a structural check on prosecutors who would turn one course of conduct into an open-ended series of indictments.
The justices’ choice not to hear the appeal ends this vehicle. It does not erase the circuit tension Courthouse News described, and it does not answer Sotomayor’s warning about limitless charging if lower courts accept the broadest version of the government’s theory.
Procedurally, a cert denial means Herrera-Salazar does not get Supreme Court relief from the second term. The Tenth Circuit’s affirmance controls his case.
Future defendants in similar binds will have to raise double jeopardy challenges on their own records. Trial courts will still face motions to dismiss successive § 1326(a) indictments when probation or supervision prevented departure. Appeals courts outside the Tenth Circuit may continue to apply their existing completion-on-arrest approach unless and until the Supreme Court takes a clean split.
Prosecutors, for their part, retain the statute. What they do not yet have from the high court is a blessing of repeated “found in” counts drawn from compelled continuous presence after a first conviction. Sotomayor and Gorsuch said that path courts constitutional trouble.
The public record here also does not spell out every probation condition beyond the bar on returning to Mexico and the order to remain in Oklahoma. Those conditions mattered because they defined the “Hobson’s choice” Sotomayor described: stay and risk another “found in” case, or leave and violate supervision and removal-related limits.
Border statutes mean little if courts cannot apply them, and constitutional guarantees mean little if charging theories can multiply one continuous offense without end. A free society needs lawful immigration enforcement and a Double Jeopardy Clause with real bite, not a paper promise that prosecutors can time-slice away.
