                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 05a0285n.06
                            Filed: April 14, 2005

                                            No. 04-1273

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                         )
                                                  )
       Plaintiff-Appellee,                        )
                                                  )
v.                                                )    ON APPEAL FROM THE UNITED
                                                  )    STATES DISTRICT COURT FOR THE
DIRUBY THOMAS FOSTER,                             )    EASTERN DISTRICT OF MICHIGAN
                                                  )
       Defendant-Appellant.                       )



       Before: MARTIN, COOK, and LAY*, Circuit Judges.


       PER CURIAM. Diruby Thomas Foster pleaded guilty below to being a felon in possession

of a firearm. His plea agreement waived all appellate rights, except with regard to whether the

evidence against him, which the district court refused to suppress, was the fruit of an illegal search

and seizure. After reviewing the record, the parties’ briefs, and the applicable law, the panel

unanimously agrees that oral argument is not needed in this case, Fed. R. App. P. 34(a), and that the

district court’s refusal to suppress the evidence was based on a credibility finding that was not

clearly erroneous. We therefore affirm the conviction.




       *
        The Honorable Donald P. Lay, Circuit Judge for the United States Court of Appeals for the
Eighth Circuit, sitting by designation.
No. 04-1273
United States v. Foster

       We also deny Foster’s motion to remand for resentencing in light of United States v. Booker,

125 S.Ct. 738 (2005), because Foster waived his right to raise this issue on appeal. See United

States v. Bradley, No. 03-6328, ___ F.3d ___, 2005 U.S. App. LEXIS 3970, at *18-*19 (6th Cir.

Mar. 10, 2005) (dismissing Booker claim because defendant’s plea agreement waived right to

appeal).




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