St. Petersburg Criminal Lawyer Blog
Serving a sentence should not leave someone facing another prosecution simply for obeying release conditions. Yet that was the dilemma described by two Supreme Court justices in Herrera-Salazar v. United States. The Court’s October 2026 decision declined to review the case, while an accompanying statement questioned whether a second prosecution violated the protection against double jeopardy. If new charges appear to repeat conduct for which you have already been prosecuted, a St. Petersburg criminal defense attorney can compare the cases and assess the constitutional issues.
Two Prosecutions Following One Reentry
According to the Court’s statement, the defendant was indicted in 2020 for being found in the United States after removal, in violation of 8 U.S.C. § 1326(a). He pleaded guilty, served his prison sentence, and began supervised release. A condition of that release expressly prohibited him from leaving the Eastern District of Oklahoma.
It is reported that while he remained on supervision, officers stopped him in Heavener, Oklahoma. He was arrested and prosecuted again under the same statute. A jury convicted him, and the court imposed another term of imprisonment and supervised release. His challenge concerned a second prosecution arising from his continued presence in the country, rather than a new departure and reentry.
Allegedly, the Tenth Circuit rejected his double jeopardy argument. As the Supreme Court statement explained, the appellate court interpreted the statute to allow separate prosecutions without requiring a separate reentry for each charge. The defendant then asked the Supreme Court to review that result.
The Constitutional Concern Identified by Two Justices
The Fifth Amendment’s Double Jeopardy Clause protects against a second prosecution for the same offense after conviction. Applying that protection requires identifying what counts as the same offense. When conduct continues over time, the question may be whether prosecutors have identified a genuinely separate crime or simply divided a single continuing offense into different periods.
Justice Sotomayor, joined by Justice Neil Gorsuch, questioned whether the statutory phrase covering a person found in the United States fairly encompasses someone whom the government has already located and required to remain under supervision. She also argued that, even if the statute could be read that way, the second conviction presented serious constitutional problems.
Her reasoning focused on the uninterrupted nature of the conduct. The defendant’s presence continued after the first conviction, and the government’s own restrictions prevented him from leaving. In her view, selecting a later date on which officials encountered him did not transform that continuing conduct into a separate offense. She drew on prior Supreme Court decisions rejecting efforts to divide one continuous crime into multiple prosecutions based on time or location.
Why the Denial of Review Matters
The Supreme Court denied review on October 13, 2026. Justice Sotomayor explained that she agreed with that disposition because she hoped the circumstances were unusual and because the defendant had since been removed from the United States. She nevertheless urged courts confronting similar facts to give full effect to the protection against double jeopardy.
The distinction between the Court’s action and the accompanying statement is essential. The Court did not overturn the conviction or issue a majority ruling adopting the two justices’ analysis. Their statement identifies an argument for courts to consider; it does not establish that every later charge under the same statute is unconstitutional.
For someone facing successive charges, a useful review begins with the earlier charging document, judgment, release conditions, and the dates and conduct alleged in the new case. Those records can reveal whether the prosecution depends on a distinct event or a disputed attempt to punish the same continuous conduct again.
Review New Charges With a St. Petersburg Defense Attorney
A new prosecution can require a careful comparison with what happened in an earlier case. The St. Petersburg criminal defense attorneys at Hanlon Law can review the charging history, identify potential constitutional objections, and explain the available defense options. Call 727-289-0222 to arrange a consultation.