[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]

United States Court of Appeals For the First Circuit

No. 00-2457

UNITED STATES,

Appellee,

v.

DAVID BRENT COSTIGAN,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. District Judge]

Before

Torruella, Chief Judge, Bownes, Senior Circuit Judge, and Lipez, Circuit Judge.

Jon A. Haddow and Farrell, Rosenblatt & Russell on brief for appellant. Jay P. McCloskey, United States Attorney, and F. Mark Terison, Senior Litigation Counsel, on Motion for Summary Disposition for appellee.

March 26, 2001 Per Curiam. The government has moved for summary

disposition in this direct criminal appeal filed by David

Brent Costigan. We grant the motion and summarily affirm

Costigan's conviction and sentence.

Costigan was convicted, after a bench trial, of

possession of a firearm after having been convicted of a

misdemeanor crime of domestic violence, involving his former

girlfriend, Maria Santos. See

(g)(9).1 A

misdemeanor crime of domestic violence is defined as

an offense that -

(i) is a misdemeanor under Federal or State law; and

1Section 922(g)(9) provides that:

It shall be unlawful for any person -

. . .

who has been convicted in any court of a misdemeanor crime of domestic violence

. . .

to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

-2- (ii) 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.

(a)(33)(A) (emphasis added). Costigan was

sentenced on October 17, 2000 to four months imprisonment

and remanded to custody at that time.2

At trial, Costigan stipulated that he had possessed

a rifle, which had traveled in interstate commerce, and that

he had two prior convictions for assaulting Santos, which

convictions were misdemeanors under Maine law and had, as an

element, the use or attempted use of physical force.

Costigan contested only that the convictions were for

domestic violence as required by § 922(g)(9) and defined by

§ 921(a)(33)(A)(ii). The issue at trial and Costigan's

primary issue on appeal is his contention that "cohabiting

... with the victim as a spouse," see § 921(a)(33)(A)(ii)

[quoted, supra], is unconstitutionally vague.

2Both the district court and this court denied Costigan's request for release pending appeal.

-3- In United States v. Meade,

(1st Cir.

1999), we rejected a vagueness challenge to § 922(g)(9),

reciting, that "[i]t is, after all, fair to presume that a

misdemeanant will know his relationship with his victim."

Id. at 222. The precise issue posed by the instant case,

however, was not present in Meade because Meade's prior

misdemeanor conviction had been for assaulting his spouse.

Costigan argues that living together as boyfriend and

girlfriend (which is how he describes his relationship with

Santos) does not give sufficient notice that he can not

possess a firearm if convicted of assaulting that

girlfriend. He also argues that his conduct did not

factually support the definition because he and Santos had

a stormy relationship in which marriage was not contemplated

and, he said, he only sporadically lived with Santos and, at

other times, lived at an apartment attached to his mother's

home.

We review de novo a contention that a criminal

statute is unconstitutionally vague. See United States v.

Bohai Trading Co., Inc.,

(1st Cir. 1995).

And, we review a vagueness challenge, not involving First

Amendment freedoms, in light of the facts of the case at

hand. See United States v. Mazurie,

, 550

-4- (1975). With that framework in mind, we reject Costigan's

vagueness challenge.

Among the factors that the district court

considered in determining whether the government had proved

that Costigan and Santos were cohabiting as spouses were the

length of the relationship; shared residence as indicated by

spending the night and keeping one's belongings at the

residence; intimate relations; expectations of fidelity and

monogamy; shared household duties; regularly sharing meals

together; joint assumption of child care; providing

financial support; moving as a family unit; joint recreation

and socialization; and recognition of the live-in

relationship by family and friends as indicated by visits to

the residence. These factors are both relevant and

supported by the evidence.

Costigan met Maria Santos in October or November

1995. He moved in with her and her three children from

prior marriages soon thereafter and he and Santos shared a

sexual relationship. Costigan kept his clothes at their

home in a dresser purchased for that purpose. The couple

and Santos's children moved to an apartment that Costigan

found for them. The couple and the children ate together as

a family and had a regular Tuesday family pizza night.

-5- Costigan built a fence at the new apartment. He

participated in the discipline of the children, played with

them, gave them money, attended their school activities and

formed a bond with them. Costigan's relatives visited and

considered the couple as living together.

"The constitutional requirement of definiteness is

violated by a criminal statute that fails to give a person

of ordinary intelligence fair notice that his contemplated

conduct is forbidden by the statute." See United States v.

Harriss,

(1954). A person of ordinary

intelligence would view the facts recited above as a

description of Costigan cohabiting with Santos as a spouse.

During the course of their relationship, Costigan assaulted

Santos in December 1995, was convicted of this assault in

February 1996, assaulted Santos again in June 1996, was

convicted of this second assault in September 1996, and

allegedly assaulted Santos a third time in October 1999. A

rifle was found in Costigan's possession at the time of the

October 1999 incident, leading to the firearm charge

underlying this appeal. In defining domestic violence, the

statutory phrase "cohabiting ... with the victim as a

spouse," gave Costigan fair notice that his conduct of

-6- possessing a firearm after his convictions for assaulting

Santos was forbidden.

Costigan also argued below and reiterates on appeal

his claim that § 922(g)(9) exceeds Congress's power under

the Commerce Clause because possession of a firearm by a

person convicted of a misdemeanor crime of domestic violence

is not economic activity and is without substantial impact

upon interstate commerce. Rather, he argues, curbing

domestic violence is properly assigned to state law. As

with the constitutional challenge based on vagueness, we

review de novo a statutory challenge based on the Commerce

Clause. See United States v. Cardoza,

(1st

Cir. 1997).

Costigan relies on United States v. Morrison,

(2000), in which the Court held that Congress

lacked authority to enact the Violence Against Women Act

("VAWA"),

, under the Commerce Clause. The

Court found that (i) gender-motivated crimes of violence are

not economic in nature, (ii) VAWA did not contain any

jurisdictional element, and (iii) the Congressional findings

regarding the impact on interstate commerce inappropriately

blurred the distinction between national and local

authority.

. Costigan argues that nothing in

-7- the statutory history of § 922(g)(9) shows that possession

of firearms by persons convicted of misdemeanor crimes of

domestic violence has any appreciable impact on interstate

commerce and, to the extent that § 922(g)(9) seeks to

prevent possession of firearms, it regulates purely local

activity.

Section 922(g)(9) is unlike the VAWA. Section

922(g)(9) is subject to an interstate jurisdictional

requirement in that the firearm must have traveled in

interstate commerce. Post-Morrison, courts have uniformly

held that Morrison does not affect the conclusion that §

922(g) is within Congressional authority under the Commerce

Clause. See, e.g., United States v. Dorris,

(10th Cir. 2000) (reviewing § 922(g)(1)); United

States v. Napier,

(6th Cir. 2000)

(reviewing § 922(g)(8)); 3 United States v. Jones,

(9th Cir. 2000) (reviewing § 922(g)(8)); United

States v. Wesela,

(7th Cir. 2000)

(reviewing § 922(g)(1)), cert. denied,

(2001). Apart from the express jurisdictional requirement

3Section 922(g)(8) is similar to § 922(g)(9) in that sub- section (8) prohibits a person who is subject to a domestic violence court order from possessing a firearm that has traveled in interstate commerce.

-8- that the firearm have traveled in interstate commerce, the

Napier and the Jones courts distinguished Morrison by the

nature of the subject matter of the statutes involved. The

VAWA regulated a purely intrastate non-commercial activity,

while § 922(g)(8) regulates the possession of firearms, a

product of interstate commerce. United States v. Napier,

; United States v. Jones,

-

15. Costigan does not even mention these post-Morrison

cases, much less distinguish them. We reject Costigan's

Commerce Clause challenge to § 922(g)(9).

Finally, Costigan contends that the district court

abused its discretion in imposing a three year term of

supervised release. See U.S.S.G. §5D1.1(b) (permitting, but

not requiring, the court to order a term of supervised

release to follow imprisonment when a sentence of one year

or less is imposed). In deciding whether to impose a term

of supervised release, the court "may consider the need for

a term of supervised release to facilitate the reintegration

of the defendant into the community; to enforce a fine,

restitution order, or other condition; or to fulfill any

other purpose authorized by statute." U.S.S.G. §5D1.1,

comment. (n.2).

-9- Costigan did not object below to the imposition of

a term of supervised release. We, therefore, review this

claim for plain error. See United States v. Paradis,

(1st Cir. 2000). In fashion similar to

defendant Paradis, see

Costigan does little more than

simply argue that three years of supervised release is

unnecessary. At sentencing, the district court described

Costigan as exactly the sort of person that Congress was

concerned with in enacting § 922(g)(9) and one who had not

taken responsibility for his life. It also required, as an

additional condition of supervised release, that Costigan

participate in a program of mental health treatment,

including a batterer's intervention program. These

determinations, fully supported by the evidence, attest to

the need to facilitate Costigan's reintegration into the

community. See U.S.S.G. §5D.1.1, comment. (n.2). They also

establish that Costigan has failed to demonstrate "an

obvious and clear error under law that seriously affect[s]

the fairness, integrity or public reputation of judicial

proceedings." United States v. Paradis,

(citation omitted).

The judgment of the district court is summarily

affirmed. Loc. R. 27(c).

-10-