USCA11 Case: 23-10823    Document: 36-1     Date Filed: 02/22/2024   Page: 1 of 3




                                                  [DO NOT PUBLISH]
                                   In the
                United States Court of Appeals
                        For the Eleventh Circuit

                          ____________________

                                No. 23-10823
                          Non-Argument Calendar
                          ____________________

       UNITED STATES OF AMERICA,
                                                      Plaintiff-Appellee,
       versus
       NOEL ARIKE,


                                                  Defendant-Appellant.


                          ____________________

                 Appeal from the United States District Court
                    for the Southern District of Alabama
                  D.C. Docket No. 1:21-cr-00139-JB-MU-12
                          ____________________
USCA11 Case: 23-10823      Document: 36-1     Date Filed: 02/22/2024     Page: 2 of 3




       2                      Opinion of the Court                 23-10823


       Before JORDAN, NEWSOM, and LAGOA, Circuit Judges.
       PER CURIAM:
              Noel Arike challenges the district court’s decision to revoke
       his pre-sentence supervised release and its denial of an acceptance-
       of-responsibility reduction at sentencing. In response, the govern-
       ment filed a motion to dismiss this appeal. It asserts that (1) this
       Court lacks jurisdiction over Arike’s challenge to his supervised re-
       lease because a magistrate judge made that determination and
       Arike never appealed it to the district court, and (2) the remaining
       issue on appeal is barred by the appeal waiver in Arike’s plea agree-
       ment.
               The government is correct that Arike never challenged the
       magistrate judge’s revocation of his pre-sentence release before the
       district court. Under those circumstances, “we lack jurisdiction to
       hear this appeal.” United States v. Schultz, 

 (11th
       Cir. 2009). Moreover, and in any event, Arike’s challenge on this
       front is likely moot because he has since been sentenced. Cf. Mur-
       phy v. Hunt, 

 (1982). As a result, we GRANT the
       government’s request to dismiss this issue on appeal.
              We reject, however, the government’s request that we dis-
       miss the remaining issue on appeal. A key part of Arike’s challenge
       to the district court’s sentencing determination is that the govern-
       ment breached its plea agreement with him. As our precedent
       makes clear, “an appeal waiver does not bar a defendant’s claim that
       the government breached [a] plea agreement.” United States v.
USCA11 Case: 23-10823     Document: 36-1     Date Filed: 02/22/2024    Page: 3 of 3




       23-10823              Opinion of the Court                        3

       Hunter, 

 (11th Cir. 2016). Accordingly, we DENY
       the government’s request to dismiss Arike’s remaining challenge
       regarding whether the district court correctly denied him an ac-
       ceptance-of-responsibility sentencing reduction.
             As requested, we grant the government 30 days to file a re-
       sponsive brief regarding the remaining issue relevant to Arike’s ap-
       peal.