The opinion of the court was delivered by: Sifton, Senior Judge.
MEMORANDUM OPINION AND ORDER
On September 16, 2003, Maria Rodriguez pled guilty to one count of money laundering in violation of 18 U.S.C. § 1956(a)(3)(B). She is currently serving an amended prison sentence of thirty months. Presently before the Court is Rodriguez's petition requesting that this Court set aside or correct the sentence it imposed on June 8, 2005, pursuant to 28 U.S.C. § 2255. Rodriguez challenges the imposition of this sentence on two grounds: (1) that her conviction was obtained by the use of evidence gained pursuant to an unconstitutional search and seizure; and (2) that her sentence did not accurately reflect the amount of money she laundered.
For the reasons set forth below, the petition is denied.
The following facts are taken from the parties' submissions in connection with this motion and are undisputed except where noted.
Petitioner Maria Rodriguez was apprehended on February 25, 2003 following a sting operation conducted by a Task Force of agents from Immigration and Customs Enforcement. At that time, Rodriguez owned and operated Telemillenium, a store providing money orders and wire transfer services. In February of 2002 Rodriguez was approached by a confidential informant working with the Task Force, who proposed an exchange of cash for money orders. Between March 2002 and January 2003 Rodriguez accepted $136,000 in cash from the confidential informant in exchange for money orders. The confidential informant made several references to narcotics dealing as the source of the money being laundered. On March 8, 2002 the confidential informant told Rodriguez that he had to go to Philadelphia to pick up "the money and that shit," to which she responded that he should drive carefully and follow the traffic laws. In October 2002 the confidential informant specifically told Rodriguez that he was going to bring her "whatever I sell worth of coke". Petitioner laundered more than $70,000 following the conversation in March, and more than $32,000 following the conversation in October. All transactions with Rodriguez were tape recorded by the informant.
On September 16, 2003, Maria Rodriguez pled guilty to one count of money laundering in violation of 18 U.S.C. § 1956(a)(3)(B). On May 6, 2004, I imposed a sentence of forty-six (46) months in prison, pursuant to U.S. Sentencing Guidelines § 2S1.1 Laundering of Monetary Instruments; Engaging in Monetary Transactions in Property Derived from Unlawful Activity. Rodriguez's pre-sentencing report ("PSR") determined that under the Sentencing Guidelines her base offense level was 16 pursuant to § 2S1.1(a)(2) and § 2B1.1. Section 2S1.1(a)(2) sets a default of 8 to which additional levels are added depending on the amount of money laundered, as set forth in § 2B1.1. The amount of money Petitioner laundered was calculated as more than $70,000, for which § 2B1.1 provides an 8 level increase from the default of 8, for a total base level of 16. The PSR also added a 6 level enhancement based on Rodriguez's knowledge that the funds she laundered were narcotics proceeds, a 4 level enhancement based on the finding that Rodriguez was in the business of laundering funds, and a 3 level reduction for acceptance of responsibility, resulting in a net offense level of 23.
Rodriguez appealed her sentence. Following the Supreme Court's decision in United States v. Booker, 543 U.S. 220 (2005) the parties consented to a remand of the case. On June 8, 2005 at the resentencing hearing, I sentenced Rodriguez to thirty (30) months. Although I did not alter the factual determinations made at the time of the original sentence, I imposed a non-guideline sentence under 19 U.S.C. §3556, taking into account that the money laundering in which Rodriguez participated was small scale compared to most money laundering operations and, as a result, constituted a less serious offense than that contemplated by the sentencing guidelines.
On December 8, 2005, Rodriguez filed a pro se petition under § 2255 requesting that this Court vacate, set aside or correct her sentence on the grounds: (1) that her conviction was obtained by the use of evidence gained through an unconstitutional search and seizure; and (2) that her sentence did not accurately reflect the amount of money that she laundered.
Where, as here, a petition is filed pro se, the court must give the petitioner "every reasonable opportunity to demonstrate a valid complaint," LaBounty v. Adler, 933 F.2d 121, 122 (2d Cir. 1991), and must construe the "pro se petitioner's motion liberally in his [or her] favor," Vasquez v. United States, 1999 WL 549004, at *2 (S.D.N.Y. 1999). See also Haines v. Kerner, 404 U.S. 519, 520-21 (1972); McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999).
Section 2255 provides a prisoner in federal custody a limited opportunity to collaterally challenge the legality of the sentence imposed on him by the Court. United States v. Addonizio, 442 U.S. 178, 185 (1979). The sentencing court is authorized by § 2255 to discharge or resentence a defendant if it concludes that "the sentence was imposed in violation of the Constitution . . . was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." § 2255; Addonizio, 442 U.S. at 185. In a § 2255 proceeding, the petitioner bears the burden of proving by a preponderance of the evidence that his or her sentence was imposed unlawfully. See Triana v. United States, 205 F.3d 36, 40 (2d Cir. 2000).
Unconstitutional Search and Seizure
Rodriguez argues that her conviction was based upon evidence obtained pursuant to an unconstitutional search and seizure. However, Petitioner's claim is doubly barred because she pleaded guilty ...