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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

vs. CASE NO. 4:01-CR-028-SPM

LYNDOM BURL BAKER,

Defendant.

_____________________________/

ORDER OVERRULING OBJECTIONS TO REPORT AND RECOMMENDATION

THIS CAUSE comes before the Court upon the “Defendant’s Objection to

Magistrate Judge’s Report and Recommendation” (doc. 105) filed July 19, 2006. 

This Court previously adopted the report and recommendation and denied

Defendant’s § 2255 motion (see doc. 101). Defendant then filed a motion for

extension of time in which to file objections, stating that he never received a copy

of the report and recommendation. With leave of court (see doc. 104),

Defendant now files his objections, which I have reviewed de novo.

As to drug quantity, Defendant was on notice that he was defending

against a charge of more than 50 grams of cocaine; discovery revealed a lab

report indicating the amount of powdered cocaine to be 241.8 grams, which was

corroborated by police reports. See doc. 97. Defendant stipulated at trial that

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approximately 242 grams of cocaine were recovered in the seizure, and the jury

instructions and verdict form were in line with that figure. No error was

committed.

As to Defendant’s career offender status, his counsel argued to the

sentencing court that Defendant’s prior drug felonies were minor in nature; that

he did not fit the type of defendant targeted by the career offender enhancement;

that his criminal history points were substantially less than that required for a

Category VI history; that he was troubled by the presentence report’s

determination that Defendant was a career offender; and that the discrepancy in

sentence length between career offender and non-career offender status was

almost double. Counsel requested that the court downward depart from the

guidelines on the basis that his prior criminal history is “not as serious as the

career offender status would make it to be,” which is exactly the theory espoused

in section 4A1.3 of the Sentencing Guidelines Manual. There is simply no basis

on which to find that counsel failed to properly argue for a downward departure. 

Additionally, counsel’s failure to answer affirmatively when asked by the

court if there were any objections neither deprived the appellate court of a

reviewable record nor constituted ineffective assistance of counsel. Counsel did

a fine job highlighting the reasons why career offender status would be

inappropriate for Defendant, and there is no evidence that the outcome would

have been different had counsel simply repeated those objections and

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arguments at the end of the hearing. 

Even had the sentencing court placed specific factual findings on record,

there is no reasonable probability that the outcome of the proceeding would have

been different. The court examined the presentence report and heard argument

from counsel as to what an appropriate sentence would be. Based on the

transcript and the case file, the appellate court had the opportunity to

meaningfully review the factors contributing to the sentence imposed upon

Defendant. 

Defendant’s final argument is that counsel was ineffective for failing to

properly cross-examine codefendant Jackson as to his prior criminal history. 

Counsel did, however, point out numerous lies Jackson told to law enforcement

and judicial officers on other occasions, thereby impeaching his credibility, and

there existed other evidence tying Defendant to the crime. Because Defendant

has not proven the prejudice prong of Strickland v. Washington, 466 U.S. 668

(1984), the Court need not address any argument as to counsel’s

ineffectiveness. Tafero v. Wainwright, 796 F.2d 1314, 1319 (11th Cir. 1986). 

A de novo review of counsel’s objections shows that Defendant is not

entitled to relief. Accordingly, it is

ORDERED AND ADJUDGED as follows:

1. Defendant’s objections (doc. 105) are overruled.

2. The magistrate judge's report and recommendation (doc. 100) is

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readopted and incorporated by reference in this order.

DONE AND ORDERED this tenth day of August, 2006.

 s/ Stephan P. Mickle 

Stephan P. Mickle

United States District Judge

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