United States v. Noel Arike

Opinion

[DO NOT PUBLISH]

In the

United States Court of Appeals For the Eleventh Circuit

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No. 23-10823

Non-Argument Calendar

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UNITED STATES OF AMERICA, Plaintiff-Appellee,

versus NOEL ARIKE,

Defendant-Appellant.

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Appeal from the United States District Court for the Southern District of Alabama D.C. Docket No. 1:21-cr-00139-JB-MU-12

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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 acceptanceof -responsibility reduction at sentencing. In response, the government filed a motion to dismiss this appeal. It asserts that (1) this Court lacks jurisdiction over Arike’s challenge to his supervised release 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 agreement .

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, 565 F.3d 1353, 1360 (11th Cir. 2009). Moreover, and in any event, Arike’s challenge on this front is likely moot because he has since been sentenced. Cf. Murphy v. Hunt, 455 U.S. 478, 481 (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 dismiss the remaining issue on appeal. A key part of Arike’s challenge to the district court’s sentencing determination is that the government 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.

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23-10823 Opinion of the Court 3

Hunter, 835 F.3d 1320, 1324 (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 acceptance -of-responsibility sentencing reduction.

As requested, we grant the government 30 days to file a responsive brief regarding the remaining issue relevant to Arike’s appeal .