                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 05-3828
                                   ___________

Brandon Buster,                        *
                                       *
            Appellant,                 *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * Southern District of Iowa.
United States of America,              *
                                       *
            Appellee.                  *
                                   __________

                             Submitted: May 16, 2006
                                Filed: May 23, 2006
                                 ___________

Before WOLLMAN, BRIGHT, and RILEY, Circuit Judges.
                          ___________

RILEY, Circuit Judge.

     Brandon Buster (Buster) appeals the district court’s1 denial of Buster’s 28
U.S.C. § 2255 motion to vacate, set aside, or correct his sentence. We affirm.

I.     BACKGROUND
       Through advice of counsel, Buster pled guilty to one count of conspiracy to
distribute cocaine and marijuana, in violation of 21 U.S.C. §§ 841(b)(1)(A) and 846;


      1
        The Honorable Ronald E. Longstaff, Chief Judge, United States District Court
for the Southern District of Iowa.
and one count of being a prohibited person in possession of a firearm, in violation of
18 U.S.C. § 922(g)(9).

      Section 922(g)(9) makes it a crime for a person who has been convicted of a
misdemeanor crime of domestic violence to possess a firearm. Section
921(a)(33)(A)(ii) defines “crime of domestic violence” as an offense that

      has, as an element, the use or attempted use of physical force, or the
      threatened use of a deadly weapon, committed by a current or former
      spouse, parent, or guardian of the victim, by a person with whom the
      victim shares a child in common, by a person who is cohabiting with or
      has cohabited with the victim as a spouse, parent, or guardian, or by a
      person similarly situated to a spouse, parent, or guardian of the victim.

The indictment based Buster’s section 922(g)(9) charge on his prior Iowa conviction
for domestic abuse. See Iowa Code § 236.2(2). The presentence investigation report
(PSR) prepared in anticipation of Buster’s sentencing described the circumstances of
Buster’s prior domestic abuse conviction:

      The complaint indicates the defendant was the aggressor in a physical
      altercation with his live-in girlfriend in which the girlfriend sustained
      injuries. The defendant resisted arrest and struggled with officers during
      handcuffing. The police report indicates the defendant pushed Jacqulyn
      Gabriel to the ground and struck her in the face, on the arms, on her
      shoulders, and in her side. As a condition of probation the defendant
      was ordered to participate in a batterer’s education program.

Buster did not object to this portion of the PSR.

      Buster moved pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his
sentence, arguing, among other claims, his counsel was ineffective for advising him
to plead guilty to possessing a firearm following conviction for domestic abuse


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because a live-in girlfriend does not qualify as “person similarly situated to a spouse”
as described in the federal definition of domestic violence. See 18 U.S.C.
§ 921(a)(33)(A)(ii). The district court denied Buster’s motion without an evidentiary
hearing, and granted a certificate of appealability on this one contention. This appeal
followed.

II.   DISCUSSION
      “We review de novo the district court’s denial of a § 2255 motion without an
evidentiary hearing and will affirm only if the motion, files, and record conclusively
show the movant is not entitled to relief.” Von Kahl v. United States, 242 F.3d 783,
787 (8th Cir. 2001).2

       To prove his counsel rendered ineffective assistance, Buster must satisfy the
test enunciated in Strickland v. Washington, 466 U.S. 668, 688, 693 (1984) (stating
the test is whether “counsel’s representation fell below an objective standard of
reasonableness,” resulting in prejudice). A district court does not err in dismissing
a movant’s section 2255 motion without a hearing if (1) the movant’s “allegations,
accepted as true, would not entitle” the movant to relief, or “(2) the allegations cannot


      2
        As an initial matter, the government argues, based on a waiver clause in
Buster’s plea agreement, that Buster waived his right to seek postconviction review
on a claim of ineffective assistance of counsel grounded on facts known to him at the
time he pled guilty, because Buster did not raise the issue or object upon receiving
the PSR describing his prior domestic abuse conviction. We disagree. Buster’s
argument is that his attorney misadvised him as to the federal definition of a crime of
domestic violence, and this advice detrimentally led Buster to sign the plea agreement
that included the waiver. “Justice dictates that a claim of ineffective assistance of
counsel in connection with the negotiation of a cooperation agreement cannot be
barred by the agreement itself–the very product of the alleged ineffectiveness.” Jones
v. United States, 167 F.3d 1142, 1145 (8th Cir. 1999) (citation and quotation
omitted).


                                          -3-
be accepted as true because they are contradicted by the record, inherently incredible,
or conclusions rather than statements of fact.” Sanders v. United States, 341 F.3d
720, 722 (8th Cir. 2003) (citation and quotation omitted).

       We conclude Buster’s counsel was not ineffective and the district court did not
err in dismissing Buster’s motion without an evidentiary hearing, because the
undisputed facts underlying Buster’s prior conviction for domestic abuse could
support a violation of 18 U.S.C. § 922(g).3 Two of our sister circuits have addressed
the issue before us, with one holding a “live-in girlfriend” qualifies as a domestic
relationship for purposes of sections 922(g)(9) and 921(a)(33)(A)(ii), and the other
assuming as much. United States v. Shelton, 325 F.3d 553, 563 (5th Cir. 2003)
(“‘Live-in girlfriend’ indicates living together with the implication that the two were
having sexual relations. Accordingly, [the defendant]’s admission was sufficient
evidence to prove the victim was similarly situated to a spouse in the context of
[section 921(a)(33)(A)(ii)].”); United States v. Denis, 297 F.3d 25, 31 (1st Cir. 2002)
(assuming defendant’s “live-in girlfriend” was similarly situated to a spouse for
purposes of sections 922(g)(9) and 921(a)(33)(A)(ii)).

        We agree with the First and Fifth Circuits and hold abuse perpetrated on a live-
in girlfriend is domestic abuse committed “by a person similarly situated to a spouse”
for purposes of sections 922(g)(9) and 921(a)(33)(A)(ii). Cf. United States v. Cuervo,
354 F.3d 969, 998 (8th Cir. 2004) (holding sufficient evidence supported defendant’s
conviction under section 922(g)(9) where evidence showed defendant and victim
“shared an intimate personal relationship”), vacated on other grounds sub nom.,
Norman v. United States, 543 U.S. 1099 (2005), Schoenaur v. United States, 543 U.S.
1099 (2005); see also White v. Dep’t of Justice, 328 F.3d 1361, 1369 (Fed. Cir. 2003)


      3
       Buster concedes his prior Iowa conviction had “as an element, the use or
attempted use of physical force, or the threatened use of a deadly weapon.” 18 U.S.C.
§ 921(a)(33)(A)(ii). Thus, we need not address this issue.

                                          -4-
(holding defendant was “a person similarly situated to a spouse” under section
921(a)(33)(A)(ii) where defendant and victim cohabited as boyfriend and girlfriend
continuously for almost a year and intermittently for several months).

       In Shelton, the victim had been a “live-in girlfriend” for two months, and the
Fifth Circuit found two months cohabiting as a “live-in girlfriend” qualified as a
person “similarly situated to a spouse.” Shelton, 325 F.3d at 563. The record here
does not reflect how long the victim in Buster’s previous Iowa conviction had been
Buster’s “live-in girlfriend.” We infer Buster’s counsel knew and certainly Buster
knew the duration of cohabitation. Buster’s attorney’s belief that section 922(g)(9)
applied under these circumstances, even if a mistaken belief, was not ineffective
assistance. See Strickland, 466 U.S. at 688 (“[T]he performance inquiry must be
whether counsel’s assistance was reasonable considering all the circumstances.”).

III. CONCLUSION
     For the reasons stated, we affirm the district court’s denial of Buster’s section
2255 motion.
                          ______________________________




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