1 The Honorable Ronald E. Longstaff, Chie f Judge, United States District Court for the Southern Di strict of Iowa. 

## 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’s 1 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 c onspiracy to distribute cocaine and marijuana, in vi olation of 21 U.S.C. §§ 841(b)(1)(A) and 846;-2- and one count of being a prohi bited 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 atte mpted 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 s pouse, 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 pr esentence 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 girlfrie nd in which the girlfriend sustained injuries. The defendant resisted arre st and struggled with officers during handcuffing. The police report indi cates 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 guiltyto possessing a firearm following conviction for domestic abuse2 As an initial matter, the government argues, based on a waiver clause in Buster’s plea agreement, that Buster waiv ed his right to seek postconviction review on a claim of ineffective assistance of c ounsel 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 abus e 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 produc t of the alleged ineffectiveness.” Jones v. United States , 167 F.3d 1142, 1145 (8th Cir. 1999) (citation and quotation omitted).

-3- because a live-in girlfriend does not qualify as “person similarly situated to a spouse” as described in the federal defi nition of domestic violence. See18 U.S.C. § 921(a)(33)(A)(ii). The district court deni ed Buster’s motion without an evidentiary hearing, and granted a certificate of appeal ability 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 rendere d 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 represen tation fell below an objective standard of reasonableness,” resulting in prejudice). A district court does not err in dismissing a movant’s section 2255 moti on without a hearing if (1) the movant’s “allegations, accepted as true, would not entitle” the movant to relief, or “(2) the allegations cannot3 Buster concedes his prior Iowa conviction had “as an element, the use or attempted use of physical force, or the thr eatened use of a deadly weapon.” 18 U.S.C. § 921(a)(33)(A)(ii). Thus, we need not address this issue.
-4- be accepted as true because they are contradi cted 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 in effective and the district court did not err in dismissing Buster’s motion withoutan evidentiary hearing, because the undisputed facts underlying Buster’s prio r conviction for domestic abuse could support a violation of 18 U.S.C. § 922(g). 3 Two of our sister ci rcuits 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 togeth er 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 Circ uits and hold abuse perpetrated on a livein girlfriend is domestic abuse committed “b y 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 relationshi p”), vacated on other grounds sub nom. , Norman v. United States , 543 U.S. 1099 (2005), Schoenaur v. United States , 543 U.S. 1099 (2005); seealso White v. Dep’t of Justice , 328 F.3d 1361, 1369 (Fed. Cir. 2003)-5- (holding defendant was “a person similarly situated to a spouse” under section 921(a)(33)(A)(ii) where defendant and vic tim 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 Bu ster’s previous Iowa conviction had been Buster’s “live-in girlfriend.” We infer Buster’s counsel knew and certainly Buster knew the duration of cohabitati on. 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 reasonabl e considering all the circumstances.”).

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

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