Appellate Case: 24-7029 Document: 66-1 Date Filed: 09/26/2025 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT September 26, 2025 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 24-7029 (D.C. No. 6:23-CR-00056-RAW-1) JESUS HERRERA-SALAZAR, (E.D. Okla.)
Defendant - Appellant. _________________________________
ORDER AND JUDGMENT * _________________________________
Before McHUGH, MURPHY, and MORITZ, Circuit Judges. _________________________________
I. INTRODUCTION
In 2020 and again in 2024, the defendant-appellant Jesus Herrera-Salazar was
convicted of being found in the United States after a prior deportation in 2015. See
8 U.S.C. § 1326(a), (b)(1). 1 He appeals the second of these convictions on double
jeopardy and sufficiency grounds.
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 8 U.S.C. § 1326(b)(1) is a penalty provision which authorizes enhanced 1
punishment under certain circumstances. See Almendarez-Torres v. United States, 523 U.S. 224, 226-27 (1998). Appellate Case: 24-7029 Document: 66-1 Date Filed: 09/26/2025 Page: 2
His double jeopardy claim posits the government may sustain multiple § 1326
convictions, pursuant to a single removal order, only if it also establishes the
defendant’s removal from the United States after each conviction. Herrera-Salazar
also asserts the evidence is insufficient to sustain his second conviction because the
government failed to establish his presence outside of the United States subsequent to
the first conviction.
The defendant’s double jeopardy argument concerns § 1326’s allowable unit of
prosecution, the measure by which to determine “whether conduct constitutes one or
several violations of a single statutory provision.” Callanan v. United States, 364
U.S. 587, 597 (1961). Because Congress decides the unit of prosecution, Sanabria v.
United States, 437 U.S. 54, 69-70 (1978), the assessment of the allowable unit of
prosecution is a matter of statutory interpretation, United States v. Rentz, 777 F.3d
1105, 1108 (10th Cir. 2015) (en banc). The defendant fails to meet his burden of
proving a double jeopardy claim, see United States v. Leal, 921 F.3d 951, 959-60
(10th Cir. 2019), because his argument is at odds with existing precedent and
unsupported by the statutory text, see Groff v. DeJoy, 600 U.S. 447, 468 (2023).
Removal after a prior “found in” prosecution is not an element of a subsequent
“found in” offense. Cf. United States v. Caballero-Anaya, 807 F. App’x 837, 840
(10th Cir. 2020) (unpublished). 2 Because the government does not bear an
2 This unpublished case is cited for its persuasive value. Fed. R. App. P. 32.1; 10th Cir. R. 32.1.
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evidentiary burden, Herrera-Salazar’s sufficiency argument also falls short.
Accordingly, exercising jurisdiction pursuant to 28 U.S.C. § 1291, the court affirms
the judgment of conviction.
II. BACKGROUND
Jesus Herrera-Salazar is an undocumented Mexican national. He was deported
from the United States (“the country”) on multiple occasions, including in 2015,
when he was removed pursuant to a warrant of removal issued in 2014. Following his
removal in 2015, he reentered the country and was later discovered by a border patrol
agent in Brownsville, Texas, on May 16, 2020.
Herrera-Salazar was charged in the Southern District of Texas with being
found in the United States after deportation, in violation of 8 U.S.C. § 1326(a),
(b)(1). The criminal complaint 3 alleged he was found in the country after having been
3 The criminal complaint charged Herrera-Salazar with the following:
On or about May 16, 2020, . . . in the Southern District of Texas, . . . the defendant, an alien who had previously been denied admission, excluded, deported, or removed, knowingly and unlawfully was present in the United States having been found [in] Cameron County, Texas, the said defendant having not obtained the consent of the Attorney General or the Secretary of the Department of Homeland Security to reapply for admission into the United States. ROA Vol. I at 20. Supporting the charge were the following allegations: The defendant was encountered by Border Patrol Agents responding to a request for assistance from Brownsville Police Department near Brownsville, Texas on May 16, 2020. The defendant is a citizen and national of Mexico who was previously deported, excluded or removed from the United States on February 12, 2015.
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deported in 2015. He pleaded guilty to the charge and was sentenced to 15 months of
imprisonment, followed by 2 years of supervised release. A judgment of conviction
was entered on December 7, 2020 (“2020 conviction”). Herrera-Salazar was ordered
to report to the probation office in the federal district to which he was released if he
was not deported upon release from prison.
He served his prison sentence in Post, Texas. The day before he was released,
the defendant was asked to provide a United States address so that he could be
released there. Herrera-Salazar provided an address in Heavener, Oklahoma, where
his wife and children lived.
Upon his release on June 7, 2021, the defendant was taken from prison to a bus
station and given a bus ticket from Post to Heavener with instructions to report
within 72 hours to the United States Probation Office in Muskogee in the Eastern
District of Oklahoma. 4 He did as instructed and began serving his supervised release
in Heavener, under a probation officer named Hilary. Hilary visited Herrera-Salazar
at his home in Heavener on multiple occasions and told him he was not allowed to
leave the Eastern District of Oklahoma during his supervised release.
On April 1, 2022, while on supervised release, the defendant was pulled over
for a traffic stop during which a police officer verified his undocumented status.
Id. In his reply brief, the defendant clarified he was indicted of the offense charged in the criminal complaint. The indictment, however, is not included in the record on appeal. 4 Heavener is in the Eastern District of Oklahoma.
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Herrera-Salazar was arrested and indicted on a single count of violating 8 U.S.C.
§ 1326(a), (b)(1). Like the criminal complaint leading to his 2020 conviction, the
indictment charged him with being found in the United States after his deportation in
2015. 5
The defendant filed a motion to dismiss the indictment as a double jeopardy
violation. He claimed both the indictment filed in the Eastern District of Oklahoma
and the criminal complaint filed in the Southern District of Texas charged him with
the same crime of being found in the United States following his removal in 2015. He
argued he was therefore being prosecuted twice for a single offense, despite already
having served his custodial sentence for the 2020 conviction. The motion was denied,
allowing the matter to proceed to trial. The district court determined the instant
prosecution was not a double jeopardy violation because Herrera-Salazar had
committed two separate reentry offenses on two different dates.
During the trial, the government presented testimony from the police officer
who identified Herrera-Salazar during the traffic stop. A field officer from the United
5 The indictment charged the defendant with the following: On or about April 1, 2022, at or near the City of Heavener, in the Eastern District of Oklahoma, the defendant, JESUS HERRERA- SALAZAR, an alien, was found in the United States after having been previously denied admission, excluded, deported, and removed from the United States at or near Hidalgo, Texas on or about February 12, 2015, and not having obtained the express consent of the Attorney General or the Secretary of Homeland Security to reapply for admission to the United States, in violation of Title 8, United States Code, Section 1326(a) and enhanced by Title 8, United States Code, Section 1326(b)(1). ROA Vol. I at 15.
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States Citizenship and Immigration Services also testified, confirming Herrera-
Salazar’s undocumented status and the details surrounding his removal in 2015.
Herrera-Salazar testified in his defense. He admitted he knew his presence in the
United States was unlawful and acknowledged his prior reentries. He nevertheless
maintained he was not deported from the country after his release from prison
following his 2020 conviction. He explained Hilary had instructed him not to leave
the Eastern District of Oklahoma.
The jury found Herrera-Salazar guilty of the charged offense, and the district
court entered a judgment of conviction on March 21, 2024 (“2024 conviction”). He
was sentenced to 21 months of imprisonment followed by 3 years of supervised
release. 6 The defendant timely appealed.
III. DISCUSSION
Herrera-Salazar raises two issues on appeal. First, he raises a double jeopardy
challenge to his 2024 conviction. Next, he contends the government proffered
insufficient evidence to sustain his 2024 conviction.
6 In April 2024, Herrera-Salazar was released from prison and deported to Mexico. His removal does not make this appeal moot because Herrera-Salazar challenges his conviction, not his sentence. See United States v. Sandoval-Enrique, 870 F.3d 1207, 1210-11 (10th Cir. 2017); see also Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986) (emphasizing the obligation of a federal appellate court to be satisfied of its own jurisdiction).
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A. Double Jeopardy 7
Factual findings underlying Herrera-Salazar’s double jeopardy claim are
reviewed for clear error. United States v. Rodriguez-Aguirre, 73 F.3d 1023, 1024-25
(10th Cir. 1996). “The district court’s ultimate determination regarding double
jeopardy is, however, a question of law we review de novo.” Id. at 1025. “The
defendant bears the burden of proving a claim of double jeopardy.” Id.
The Double Jeopardy Clause provides “[n]o person shall . . . be subject for the
same offence to be twice put in jeopardy of life or limb.” U.S. Const. amend. V. It
safeguards against 1) “a second prosecution for the same offense after acquittal”;
2) “a second prosecution for the same offense after conviction”; and 3) “multiple
punishments for the same offense.” United States v. Isabella, 918 F.3d 816, 846-47
(10th Cir. 2019) (quoting North Carolina v. Pearce, 395 U.S. 711, 717 (1969)).
Invoking the second and third protections, Herrera-Salazar claims he was prosecuted,
convicted, and punished twice under the same statute, despite having committed a
single offense. See United States v. Mier-Garces, 967 F.3d 1003, 1012 (10th Cir.
2020) (“[T]he Double Jeopardy Clause [protects] defendants who have been charged
7 Although raised as a double jeopardy challenge, Herrera-Salazar’s claim includes arguments that seem to invoke due process concerns. See United States v. Biswell, 700 F.2d 1310, 1312 n.1 (10th Cir. 1983) (“As used herein, the due process defense means governmental conduct that is so fundamentally unfair and ‘so outrageous that due process principles would absolutely bar the Government from invoking judicial processes to obtain a conviction.’” (quoting United States v. Russell, 411 U.S. 423, 431-32 (1973))). Because Herrera-Salazar did not raise a due process claim in the district court or on appeal, however, any such claim is waived. Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1127-29 (10th Cir. 2011).
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with violating the same statute more than one time when they have in fact only
violated it once.” (emphasis omitted)).
“Whether a particular course of conduct involves one or more distinct offenses
under the statute depends on . . . congressional choice.” Sanabria, 437 U.S. at 70
(quotation omitted). Congress defines statutory offenses by prescribing the allowable
“unit of prosecution,” the measure by which to determine “whether conduct
constitutes one or several violations of a single statutory provision.” Callanan, 364
U.S. at 597.
The defendant theorizes the government may sustain multiple convictions
under § 1326(a)(2) based on a single removal order only if it can also establish the
offender was removed, i.e. has been outside of the United States, subsequent to each
conviction. Because the government did not establish his removal from the country
after his 2020 conviction, the defendant argues, his 2024 conviction amounted to a
second prosecution and conviction for a single § 1326 offense of being found in the
country following his 2015 removal. 8 Thus, Herrera-Salazar contends each allowable
unit of § 1326 prosecution must be set apart by the deportee’s removal from the
United States. In effect, his theory bookends each unit of prosecution with, on one
end, an independent predicate reentry, one which is distinct from any prior reentry
8 During the trial, the government did not present any evidence to establish Herrera-Salazar left the United States following his release from prison on June 7, 2021.
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that served as the basis for a past § 1326 charge and, on the other, the defendant’s
removal after the prosecution.
Assessment of the unit of prosecution is a matter of statutory interpretation to
determine “the minimum amount of activity a defendant must undertake . . . to
commit [an] independent violation.” Rentz, 777 F.3d at 1109. Statutory interpretation
begins with the text. Tarango-Delgado v. Garland, 19 F.4th 1233, 1238 (10th Cir.
2021). “[T]he text of a law controls over purported legislative intentions unmoored
from any statutory text.” Corner Post, Inc. v. Bd. of Governors of Fed. Rsrv. Sys.,
603 U.S. 799, 815 (2024) (quotation omitted).
The Immigration and Nationality Act, 8 U.S.C. § 1101 et seq., subjects to
punishment
any alien who–
(1) has been denied admission, excluded, deported, or removed or has departed the United States while an order of exclusion, deportation, or removal is outstanding, and thereafter
(2) enters, attempts to enter, or is at any time found in, the United States, unless (A) prior to his reembarkation at a place outside the United States or his application for admission from foreign contiguous territory, the Attorney General has expressly consented to such alien’s reapplying for admission; or (B) with respect to an alien previously denied admission and removed, unless such alien shall establish that he was not required to obtain such advance consent . . .
§ 1326(a). “The plain language of § 1326(a) establishes that a previously deported
alien who illegally enters and remains in the United States can violate the statute at
three different points in time, namely, when the alien (1) enters, (2) attempts to enter,
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or (3) is at any time found in the United States.” United States v. Rosales-Garay, 283
F.3d 1200, 1202 (10th Cir. 2002) (quotations omitted).
In both 2020 and 2024, Herrera-Salazar was convicted of being found in the
United States after his 2015 removal. The crime of being found in the United States
is a continuing offense. United States v. Villarreal-Ortiz, 553 F.3d 1326, 1328 (10th
Cir. 2009). 9 It “begins when a noncitizen returns to this country after removal and
continues until he or she is ‘found’ in the United States.” United States v. Romero-
Lopez, 981 F.3d 803, 804 (10th Cir. 2020).
The defendant erroneously argues each “found in” offense requires an
independent predicate entry which is separate from any other that served as a basis
for a prior “found in” prosecution. The proscribed offense under this prong is not
necessarily the entry itself, but the unlawful presence of those who are identified in
§ 1326(a)(1). See United States v. Bencomo-Castillo, 176 F.3d 1300, 1303 (10th Cir.
1999) (referring to the “illegality [of the defendant’s] presence”); see also United
States v. Santana-Castellano, 74 F.3d 593, 597 (5th Cir. 1996) (explaining the “found
in” provision is intended to punish those who “having reentered[,] remains illegally
in this country until his presence is discovered”); United States v. Are, 498 F.3d 460,
461-62 (7th Cir. 2007) (referring to the defendant’s “illegal presence”); United States
9 United States v. Villarreal-Ortiz addressed a sentencing challenge, not a double jeopardy claim. See 553 F.3d 1326, 1327 (10th Cir. 2009). Nevertheless, this and other cases below, which discuss the scope and nature of the “found in” offense in various contexts, provide helpful guidance in assessing the unit of prosecution and are considered for their persuasive weight.
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v. Clarke, 312 F.3d 1343, 1347 (11th Cir. 2002) (same). Indeed, other circuits have
determined “enters” and “found in” are two distinct substantive offenses, see United
States v. Corrales-Beltran, 192 F.3d 1311, 1320 (9th Cir. 1999) (collecting cases),
and entry is not an element of a “found in” offense, cf. Caballero-Anaya, 807 F.
App’x at 840-41; see also United States v. Parga-Rosas, 238 F.3d 1209, 1213 (9th
Cir. 2001) (“[W]e have never suggested that the crime of ‘entry’ must be charged in
order to charge the crime of being ‘found in.’”).
A “found in” offense almost always begins upon an unlawful reentry into the
United States because a deportee—who is presumably outside the country having
been removed—must first successfully enter the country in order to be present. See
United States v. Pacheco-Medina, 212 F.3d 1162, 1166 (9th Cir. 2000) (“[I]t is
apodictic that [the defendant] cannot have been found in a place he did not succeed in
entering.”); United States v. Ayon-Brito, 981 F.3d 265, 270 (4th Cir. 2020) (“[A]n
entry into the United States is required before a person is found in the United States.”
(quotation omitted)). Herrera-Salazar’s 2024 conviction, however, is distinguishable
from the typical reentry offense because, following his 2020 conviction, he was not
deported. Because he was not deported, he did not need to reenter the country to
maintain his unlawful presence therein. Cf. United States v. Pina-Jaime, 332 F.3d
609, 612 (9th Cir. 2003) (“It is [the defendant’s] volitional stay in the United States,
following termination of the specified term of his parole, of which he had knowledge,
that distinguishes this case from those in which there was an illegal entry ab initio.”).
These circumstances notwithstanding, Herrera-Salazar is not beyond the scope of
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§ 1326 because he was removed in 2015. The statute subjects to punishment those
who have “been denied admission, excluded, deported, or removed or has departed
the United States while an order of exclusion, deportation, or removal is outstanding”
“at any time” they are found in the United States. 8 U.S.C. § 1326(a)(1), (2). 10 The
statute does not provide exceptions for those prosecuted multiple times pursuant to a
single removal order. Neither does its plain text provide any indication that a “found
in” crime must begin with an independent predicate reentry.
Herrera-Salazar’s argument that § 1326’s unit of prosecution must be
separated with the removal of the noncitizen fares no better. The “found in” offense
is completed when the defendant is “found.” Villarreal-Ortiz, 553 F.3d at 1330. An
individual is “found” for the purposes of § 1326 when the government, “through the
exercise of diligence typical of law enforcement,” becomes aware of the illegality of
their presence. Id. The “found in” offense is therefore completed upon detection by
law enforcement, not upon the offender’s removal from the country. Id. In sum,
Herrera-Salazar’s unit-of-prosecution theory lacks textual support and is at odds with
this court’s precedent.
The offense of the defendant’s 2020 conviction was completed on May 16,
2020, when a border patrol agent discovered him in Texas. Rosales-Garay, 283 F.3d
at 1202 (holding the “‘found in’ language of § 1326(a) is synonymous with
10 Although exceptions are identified in 8 U.S.C. § 1326(a)(2)(A)-(B), neither are applicable here.
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‘discovered in’”). Some time thereafter, Herrera-Salazar began committing another
offense by continuing his unlawful presence in the United States. See United States v.
Salazar-Robles, 207 F.3d 648, 650 (9th Cir. 2000) (explaining “being found” is a
“passive state, not requiring proof of a voluntary act”). It need not be determined
precisely when Herrera-Salazar began committing the new offense because it is clear
on April 1, 2022, when an officer verified his undocumented status, he had completed
a new violation. The subsequent charge brought by the government was therefore
based on an independent criminal offense. The prosecution, conviction, and
punishment for his conduct on April 1, 2022, was not a double jeopardy violation.
See Rentz, 777 F.3d at 1109.
Herrera-Salazar raises two additional arguments to the contrary. First, he
asserts that affirming his 2024 conviction would embrace an absurd interpretation of
the statute. In a separate but related argument, he asks the court to adopt the holding
of United States v. Meza-Villarello, 602 F.2d 209 (9th Cir. 1979) (per curiam).
The defendant’s absurdity argument posits that if a single reentry can be
prosecuted multiple times without removal subsequent to each conviction, the
government, without running afoul of double jeopardy, could have arrested and
charged him on a daily basis following his 2022 traffic stop. He argues Congress
could not have intended such a nonsensical result, especially when, as here, the
defendant was on supervised release—requiring his continued presence in the United
States—when he was found in 2022.
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There is no need to “address whether repeated prosecutions for daily offenses
may impinge upon the Double Jeopardy Clause in some circumstances” because
Herrera-Salazar himself was not so subjected. United States v. Paternostro, 966 F.2d
907, 911 (5th Cir. 1992). Moreover, in raising an absurdity argument, Herrera-
Salazar espouses an illogical statutory reading of his own. His rendition of the statute
would shield in perpetuity, those who remain in the United States following a § 1326
conviction for as long as they are able to successfully evade, resist, or conceal their
removal. Cf. United States v. Morgan, 380 F.3d 698, 702-03 (2d Cir. 2004)
(concluding Congress could not have intended to shield from prosecution those who
repeatedly and surreptitiously reenter but conceal their reentry or remain
undiscovered). His interpretation is at odds with the language of § 1326(a)(2) which
subjects to prosecution persons identified in § 1326(a)(1) “at any time [they are]
found in the United States.” See Oklahoma v. Castro-Huerta, 597 U.S. 629, 642
(2022) (“[Courts] may not replace the actual [statutory] text with speculation as to
Congress’[s] intent.” (quotation omitted)).
“The disposition required by the text here, though strict, is not absurd.” See
Dodd v. United States, 545 U.S. 353, 359 (2005). To sustain his conviction, the
government needed only to establish Herrera-Salazar voluntarily returned to the
country following his removal; it is irrelevant whether his “continued presence in the
United States was voluntary at the moment of discovery.” United States v.
Hernandez-Noriega, 544 F.3d 1141, 1143 (10th Cir. 2008) (quotation omitted).
Herrera-Salazar does not argue his reentry into the United States after his 2015
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removal was involuntary. As a double jeopardy matter, the terms of Herrera-Salazar’s
supervised release do not affect the validity of his 2024 conviction.
Herrera-Salazar’s second argument is based on Ninth Circuit precedent. In
Meza-Villarello, the defendant appealed the denial of jury instructions that were
“tendered upon a double-jeopardy theory.” 602 F.2d at 210. The relevant facts of
Meza-Villarello bear similarity to the case at bar:
The government’s proof had established that [the defendant, Leopoldo Meza-Villarello] was deported in 1971; that in 1975 he was found in the United States and convicted of violating section 1326; and that he was arrested in 1978 [in the United States]. Following his 1975 conviction, the defendant served a prison sentence. There [was] no proof that he was again deported. The government proved that after 1971 the defendant had not received permission to enter the United States.
Id. In the district court, Meza-Villarello requested jury instructions which would
direct the jury “it could not return a verdict of guilty unless it found beyond a
reasonable doubt that the defendant had left the United States . . . subsequent to his
1975 sentencing.” Id. The defendant argued “this instruction was necessary because
unless [he] had officially been removed from the United States after [his 1975
offense,] his presence in the country was merely the same presence for which had
been punished.” Id. The district court rejected the instruction and Meza-Villarello
was convicted. Id.
Before the Ninth Circuit, Meza-Villarello again argued he was being
prosecuted twice for the same offense of being found in the country after his 1971
removal. See id. The Ninth Circuit first clarified it did not believe “Congress
intended to require a separate official or formal act of deportation to precede each
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repeated violation of section 1326.” Id. at 211. It then added “[t]o avoid an unfair
prosecution following an arrest at the prison gates, however, the government should
be required to prove that the defendant had been outside the United States after each
conviction before again prosecuting him for being ‘found’ within the United States in
violation of 8 U.S.C. § 1326” (“the Ninth Circuit removal rule”). Id. In the end,
Meza-Villarello’s conviction was affirmed because there was sufficient evidence for
a reasonable jury to find the defendant had been outside of the United States after his
1975 offense, but before his 1978 arrest. Id.
Herrera-Salazar asks the court to apply the Ninth Circuit removal rule to
resolve his double jeopardy claim. Yet, he fails to clarify whether the Ninth Circuit
removal rule concerns double jeopardy at all. As the defendant recognizes, Meza-
Villarello ultimately did not address double jeopardy questions. Id. at 211. United
States v. Sanchez-Aguilar offers conflicting accounts of the nature of the Ninth
Circuit removal rule. Compare 719 F.3d 1108, 1110 (9th Cir. 2013) (indicating the
Ninth Circuit removal rule was “grounded in double jeopardy concerns”) with id. at
1111 n.1 (holding “no double jeopardy concerns were raised” in Meza-Villarello and
suggesting the appeal was resolved on an evidentiary basis). If anything, the Ninth
Circuit removal rule seemed to have been intended to prevent unfair prosecutions, not
avoid double jeopardy violations. See 602 F.2d at 211; see also Sanchez-Aguilar, 719
F.3d at 1110 (holding the Ninth Circuit removal rule was adopted to avoid the
“specter” of unfair prosecution); supra note 1 (noting no due process claim is before
this court on appeal).
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In any event, the rationale behind the Ninth Circuit removal rule cannot be
squared with precedent which binds this court. This is a unit of prosecution case. It
involves discerning congressional intent by focusing on statutory text. See Sanabria,
437 U.S. at 69 (“It is Congress, and not the prosecution, which establishes and
defines offenses.”); Rentz, 777 F.3d. at 1109. In contrast, the Ninth Circuit observed
Meza-Villarello’s double jeopardy argument was “not supported by the words of the
statute or by its history.” Meza-Villarello, 602 F.2d at 210. The Ninth Circuit further
explained it did not “believe Congress intended to require a separate official or
formal act of deportation to precede each repeated violation of section 1326.” Id. at
211. These disparities undermine the persuasive weight of the Ninth Circuit
precedent and militate against its application to this case. See Bacote v. Fed. Bureau
of Prisons, 119 F.4th 808, 814 (10th Cir. 2024) (“As a general principle, opinions
handed down in one circuit do not bind other circuit courts.”).
B. Sufficiency of the Evidence
Herrera-Salazar next argues the evidence was insufficient to sustain his
conviction. 11 Sufficiency of evidence is reviewed de novo, “considering the evidence
in the light most favorable to the government to determine whether any rational jury
could have found guilt beyond a reasonable doubt.” United States v. Griffith, 928
F.3d 855, 868 (10th Cir. 2019) (quotation omitted). The court considers “all of the
11 The district court denied the defendant’s motion for judgment of acquittal after the government’s case-in-chief; a renewed motion, raised after the defense rested, was also denied.
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evidence, direct and circumstantial, along with reasonable inferences,” but does not
“weigh the evidence or consider the relative credibility of witnesses.” Id. at 868-69
(quotation omitted). This is a very deferential review and reversal is warranted “only
if no rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” Id. at 869 (quotation omitted).
The defendant contends the evidence was insufficient to sustain his conviction
because the government failed to establish beyond a reasonable doubt his removal
from and reentry into the United States following his 2020 conviction. His argument
treats a defendant’s removal following a prior § 1326 conviction as an essential
element of subsequent § 1326 convictions. See id.
To sustain the defendant’s conviction, the government must establish the
defendant (1) is an alien; (2) had been removed from the country; (3) was thereafter
found in the United States; and (4) lacked the permission of the Attorney General.
Caballero-Anaya, 807 F. App’x at 840; see Tenth Circuit Pattern Criminal Jury
Instruction 2.05 (2025 ed.); see also Ayon-Brito, 981 F.3d at 269; United States v.
Valdiviez-Garza, 669 F.3d 1199, 1201 (11th Cir. 2012). Ahead of the trial, the parties
stipulated to the following:
1. Defendant, Jesus Herrera-Salazar, was an alien at all times relevant.
2. Defendant was previously removed from the United States at or near Hidalgo, Texas on or about February 12, 2015.
3. Defendant entered the United States knowingly after February 12, 2015.
4. Defendant had not received the consent of the proper legal authority to reapply for admission to the United States
18 Appellate Case: 24-7029 Document: 66-1 Date Filed: 09/26/2025 Page: 19
ROA Vol. I at 98. Accordingly, the government needed only to proffer evidence to
establish the third element—that Herrera-Salazar was found in the United States after
his 2015 removal. Based on the testimony of government witnesses, a reasonable jury
could have found the third element satisfied. See Villarreal-Ortiz, 553 F.3d at 1329
(explaining a noncitizen is “found” when the government has knowledge of the
illegality of their presence). His sufficiency argument falls short.
IV. CONCLUSION
Herrera-Salazar fails to establish a double jeopardy violation or insufficiency
of the evidence. The district court’s judgment of conviction is affirmed.
Entered for the Court
Michael R. Murphy Circuit Judge