United States of America v. Diruby Thomas Foster

*The Honorable Donald P. Lay, Circuit Judge for the United States Court of Appeals for the
Eighth Circuit, sitting by designation.
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION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.
DIRUBY THOMAS FOSTER,
Defendant-Appellant.
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ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF MICHIGAN
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.

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No. 04-1273
United States v. Foster
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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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