Supreme Court Justice Neil Gorsuch, appointed by President Donald Trump, joined Justice Sonia Sotomayor on Tuesday to flag “serious constitutional problems” in the government’s prosecution of a man twice charged with the same immigration offense.
The unlikely alliance criticized the reasoning behind the case even as both agreed the Supreme Court should decline to hear it, The Washington Sun reported.
“Absurd as that seems, it is a logical outgrowth of the Government’s contention,” the justices wrote, describing how its argument could allow repeated prosecutions.
The case involves Jesus Herrera-Salazar, a Mexican national prosecuted in 2020 for being “found in” the United States after previously being removed. He pleaded guilty and served a 15-month prison sentence.
Authorities then instructed him to remain in the Eastern District of Oklahoma during supervised release. In 2022, he was charged again — despite never leaving the country and unlawfully reentering between convictions.
The justices said that left him trapped: “whether Herrera-Salazar remained in the Eastern District of Oklahoma or left the United States, he would be breaking the law.”
“Sotomayor and Gorsuch encouraged the justice system to ‘give the Double Jeopardy Clause its full weight and meaning’ if courts are tasked with reviewing cases similar to Herrera-Salazar’s,” The Washington Sun reported Tuesday.
The 10th Circuit rejected his argument that the second prosecution violated protections against being tried twice for the same offense.
“By the appeals court’s logic, Sotomayor and Gorsuch asserted, Herrera-Salazar could have been charged with a separate violation ‘for each day that he was ‘found in’ prison while serving his sentence for the first conviction,'" according to the outlet.
Herrera-Salazar had already been removed when his case reached the high court. The justices urged courts confronting similar cases to “give the Double Jeopardy Clause its full weight and meaning.”