                     UNITED STATES COURT OF APPEALS
                          FOR THE FIFTH CIRCUIT

                         _____________________

                              No. 94-60038
                         _____________________

                       UNITED STATES OF AMERICA,

                                                       Plaintiff-Appellee,

                                   versus

                              SERGIO MENDIOLA,

                                                       Defendant-Appellant.

_________________________________________________________________

             Appeal from the United States District Court
                  for the Southern District of Texas

_________________________________________________________________

                          (December 29, 1994)

Before DAVIS, BARKSDALE, and STEWART, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

     Sergio Mendiola appeals his sentence for escape from federal

custody   (halfway    house   in   Texas),   contending    that   Sentencing

Guidelines § 2P1.1(b)(3) (prescribed offense level reduction not

given   if   the   defendant,   while   on   escape,    committed   "offense

punishable by a term of imprisonment of one year or more") violates

equal protection, on the basis that there is no rational reason to

treat persons convicted for driving while intoxicated in Texas (as

he was, while absent from the halfway house), where the offense is

punishable by up to two years in jail, more harshly than persons

convicted for the same offense in States where the maximum penalty

is less than one year.        Likewise, he asserts that the subsection

violates due process, on the basis that it requires district courts
to rely on unreliable information, without permitting correction of

unreliable uses of maximum theoretical sentences.1   We AFFIRM.

1
     The Government moved to dismiss the appeal, based on
provisions in the plea agreement providing for a waiver of the
right to appeal. Mendiola contends that he did not agree to the
waiver, pointing out that a portion of the waiver provision in the
plea agreement was struck through. It goes without saying that we
have a "strong duty to avoid constitutional issues that need not be
resolved in order to determine the rights of the parties to the
case under consideration." County Court of Ulster County v. Allen,
442 U.S. 140, 154 (1979); see also Three Affiliated Tribes v. Wold
Eng'g, 467 U.S. 138, 157-58 (1984) (the "responsibility to avoid
unnecessary constitutional adjudication" is "a fundamental rule of
judicial restraint"). Here, however, we consider it preferable to
bypass the waiver issue and reach the merits. See Sojourner T v.
Edwards, 974 F.2d 27, 30 (5th Cir. 1992) (facts and procedural
posture of case do not warrant application of jurisprudential
principle that "if a case can be decided either on statutory or
constitutional law, we should address the statutory issue first"),
cert. denied, ___ U.S. ___, 113 S. Ct. 1414 (1993).        Although
"[t]he right to appeal is a statutory right, not a constitutional
right", United States v. Melancon, 972 F.2d 566, 567 (5th Cir.
1992), it nevertheless "is a right which is fundamental to the
concept of due process of law", and therefore has constitutional
implications. See Arrastia v. United States, 455 F.2d 736, 739
(5th Cir. 1972). Accordingly, by addressing the merits, we do no
great violence to the rule of avoiding the unnecessary decision of
constitutional issues.

     Even if we were to address the waiver issue, it is most
arguable that it would not be possible to dismiss the appeal on
that basis, and therefore avoid decision of the constitutional
issues, in view of the conflicting evidence on whether Mendiola
knowingly and voluntarily waived his right to appeal his sentence.
Examples of the conflicting evidence follow. Although one waiver
provision in the plea agreement was struck through, other similar
language was not.    At rearraignment, the district court asked
Mendiola whether he understood that he was "waiving the right to
appeal", but did not specify that this included appeal of the
sentence; defense counsel, however, made no attempt to clarify the
waiver provisions of the plea agreement.     And, in an affidavit
submitted in response to the Government's motion to dismiss,
defense counsel stated that the plea agreement was drafted by the
Government and presented at rearraignment; that the waiver question
was not discussed during the plea negotiations; and that it was the
regular practice of the Federal Public Defender's Office and the
United States Attorney's Office to remove language concerning
waiver from computerized plea agreement forms prepared by the
Government.

                              - 2 -
                                  I.

     In April 1991, after a weekend pass, Mendiola failed to return

to the halfway house where he was completing a federal sentence.

In 1993, while still absent, he was arrested and convicted in Texas

for driving while intoxicated.    Later in 1993, he was arrested for

not returning to the halfway house; pleaded guilty to escaping from

federal custody, in violation of 18 U.S.C. § 751(a); and was

sentenced to 24 months imprisonment.

                                  II.

     Mendiola contends that Guidelines § 2P1.1(b)(3) violates equal

protection and due process.2 Section 2P1.1(a) (Escape, Instigating

2
     Although minimally, the constitutional issues were preserved
for appeal.    Mendiola filed the following objection to the
Presentence Investigation Report:

          Defendant objects to paragraph 12, and 19, because
          escape was from a "half-way house."        Section
          2P1.1(b)(3) requires a four point reduction in the
          offense level. The total offense level should be
          7.

As a result, the following colloquy took place at sentencing:

               MR. WILDE [Defense Counsel]:     Your Honor,
          there are two points I believe that Mr. Mendiola
          would like for me to make .... One, is that DWI
          currently carries up to two years in the State of
          Texas but it doesn't in all states .... If this
          had happened in another state, he would not be
          looking at --

               THE COURT:   Did this happen in Texas?

               MR. WILDE: Yes, Your Honor.    He was convicted
          on October 1, 1993.

               THE COURT: I would think it would apply to
          Texas. Anyway, the Court is going to so rule and
          you will preserve your exception.


                                 - 3 -
or Assisting Escape) provides a base offense level.3     Subsection

(b) provides for adjustments to that level based on specific

offense characteristics.      The subsection in issue, 2P1.1(b)(3),

provides:

            If the defendant escaped from the non-secure
            custody   of  a   community   corrections   center,
            community treatment center, "halfway house," or
            similar facility, and subsection (b)(2) is not
            applicable, decrease the offense level under
            subsection (a)(1) by 4 levels or the offense level
            under subsection (a)(2) by 2 levels.      Provided,
            however, that this reduction shall not apply if the
            defendant, while away from the facility, committed


                 Do you have any other objection, Mr. Wilde?

                 MR. WILDE:   No, Your Honor.

     "[O]ne of the obvious, and most salutary, purposes of the
plain error rule `is to enforce the requirement that parties object
to errors at trial in a timely manner so as to provide the trial
judge an opportunity to avoid or correct any error ....'" United
States v. Rodriguez, 15 F.3d 408, 417 (5th Cir. 1994) (quoting
United States v. Chaney, 662 F.2d 1148, 1151 n.4 (5th Cir. 1981)).
That purpose was served here.      The essential substance of the
objection is obvious and was made known to the district court. The
record suggests that the district court ruled on it before counsel
had an opportunity to explain it fully. From the context of the
objection and ruling, counsel was entitled to believe that further
explanation would not be welcomed or entertained by the district
court. Under these circumstances, the objection was adequate to
preserve the issues for review. See United States v. Bernal, 814
F.2d 175, 182-83 (5th Cir. 1987) (objection minimally adequate
where district court cut off objection in midsentence, was aware of
basis of objection, and indicated its desire to hear no more); cf.
United States v. Greenwood, 974 F.2d 1449, 1471 n.23 (5th Cir.
1992) (where district court had already ruled on identical issue,
further objection by Government would have been futile and thus was
not required), cert. denied, ___ U.S. ___, 113 S. Ct. 2354 (1993);
Fed. R. Crim. P. 51 ("if a party has no opportunity to object to a
ruling or order, the absence of an objection does not thereafter
prejudice that party").
3
     Under § 2P1.1(a), the base offense level is "13, if the
custody or confinement is by virtue of an arrest on a charge of
felony, or conviction of any offense", U.S.S.G. § 2P1.1(a)(1); "8,
otherwise." U.S.S.G. § 2P1.1(a)(2).

                                 - 4 -
          any federal, state, or local offense punishable by
          a term of imprisonment of one year or more.

U.S.S.G. § 2P1.1(b)(3) (emphasis in original).    The district court

held that Mendiola was not entitled to the reduction because, while

"away from" the halfway house, he was convicted for driving while

intoxicated, punishable under Texas law by a term of imprisonment

greater than one year.

                                A.

     The four-point reduction is not available if the offense while

away from the facility was "punishable by a term of imprisonment of

one year or more."   U.S.S.G. § 2P1.1(b)(3).     Mendiola points out

that, although drunk driving is punishable in Texas by up to two

years in jail, the maximum possible sentence for the same offense

in other States is generally less than one year; moreover, he

received a sentence of only 60 days.   Therefore, he contends that

§ 2P1.1(b)(3) violates equal protection,4 claiming that there is no

rational reason to treat persons convicted of drunk driving in

Texas more harshly than those convicted for the same crime in

States for which the maximum sentence is less than a year.5


4
     The   Fifth   Amendment   due    process   clause   prohibits
classifications that would be invalid under the Fourteenth
Amendment's equal protection clause if practiced by a State. See
Johnson v. Robison, 415 U.S. 361, 364 n.4 [94 S. Ct. 1160] (1974).
5
     Mendiola suggests that, because a defendant convicted of drunk
driving in Texas cannot be imprisoned in the penitentiary except
upon the third conviction, we can avoid addressing the
constitutional issue by interpreting the exception to apply to
incarceration only in the state penitentiary, not in jail.       We
decline to adopt this interpretation. The Guideline refers only to
a "term of imprisonment", making no distinction between a
penitentiary and a jail. U.S.S.G. § 2P1.1(b)(3).

                              - 5 -
     Mendiola acknowledges that rational basis review applies; we

"seek only the assurance that the classification at issue bears

some fair relationship to a legitimate public purpose."             Plyler v.

Doe, 457 U.S. 202, 216 (1982).6

     At oral argument, Mendiola conceded that there is a legitimate

governmental   purpose    in   denying      offense   level     reductions     to

defendants who commit crimes after escaping from federal custody.

He asserts, however, that the criteria for denying the reduction --

focusing on the maximum sentence that could have been received,

rather than that actually received -- is not a rational means of

accomplishing that purpose.        We disagree.

     As   stated,   an   offense    committed     after    an    escape   is    a

legitimate factor to consider in imposing a sentence for that

escape; and, obviously, the seriousness of the offense plays a most

significant role in that consideration.         Offenses considered for §

2P1.1(b)(3) purposes are not only federal, but also state and

local.    Federal facilities, such as the one from which Mendiola

escaped, are located in States and localities which classify

offenses,   and   provide   different       punishment    ranges,    based     on

individual, localized determinations of the seriousness of such

offenses.    Accordingly, in determining whether a defendant who

escapes from non-secure federal custody should receive an offense-


6
     See United States v. Sherrod, 964 F.2d 1501, 1512 (5th Cir.
1992) (citing Plyler v. Doe, 457 U.S. 202 (1982)) ("Because
defendants' situation does not implicate either a suspect
classification or the exercise of a fundamental right, the
different treatment ... is subject only to rational basis
analysis."), cert. denied, ___ U.S. ___, 113 S. Ct. 1422 (1993).

                                    - 6 -
level reduction under the Guidelines, it is not irrational to focus

on the maximum sentence that could have been received (an indicator

of the considered seriousness of the offense), rather than that

actually received.7   "It is not irrational for Congress to defer to

state law with regard to the characteristics of a prior offense,

and doing so is no more intentionally arbitrary than our system of

federalism itself." United States v. Lender, 985 F.2d 151, 156 n.*

(4th Cir. 1993) (rejecting equal protection challenge to 18 U.S.C.

§ 924(e)(2)(B), Armed Career Criminal Act's definition of "violent

felony" as   "any   crime   punishable   by   imprisonment   for   a   term

exceeding one year").




7
     Numerous Guideline sections look to the maximum possible
sentence, rather than the sentence imposed. For example, see §
2J1.6 (containing identical exception to offense level reduction
for failure to report to halfway house); § 2K1.3(b)(3) & comment.
(n.4) (providing for offense level increase if defendant used or
possessed explosive material in connection with another felony
offense; commentary defines felony offense as "any offense
(federal, state, or local) punishable by imprisonment for a term
exceeding one year, whether or not a criminal charge was brought,
or conviction obtained"); § 2K2.1 & comment. (n.7) (providing for
offense level increase if defendant used, possessed, or transferred
firearm or ammunition in connection with another felony offense;
commentary defines felony offense as "any offense (federal, state,
or local) punishable by imprisonment for a term exceeding one year,
whether or not a criminal charge was brought, or conviction
obtained"); § 4A1.2(o) (defining "felony offense", for purpose of
determining sentences to be counted in computing criminal history
score under § 4A1.2(c), as "any federal, state, or local offense
punishable by death or a term of imprisonment exceeding one year,
regardless of the actual sentence imposed"); § 4B1.2(1) (defining
"crime of violence" for career offender guidelines as "any offense
under federal or state law punishable by imprisonment for a term
exceeding one year" that involves use or threatened use of force);
and § 7B1.1 p.s. (classifying probation and supervised release
violations on the basis of possible sentence under federal, state,
or local law, rather than on basis of actual sentence imposed).

                                 - 7 -
                                    B.

     While   acknowledging     that      his   due   process   contention

essentially duplicates that for equal protection, Mendiola adds

that § 2P1.1(b)(3) violates due process because it requires the

district court to rely on unreliable information in sentencing, and

does not allow the court an opportunity to correct unreliable uses

of maximum theoretical sentences. For the reasons stated above, we

reject this contention. The punishment ranges established by state

or   local   authorities     for    crimes     committed   within   their

jurisdictions are not unreliable.8

                                   III.

     For the foregoing reasons, Mendiola's sentence is

                               AFFIRMED.




8
     The Guidelines authorize the district court to depart downward
if it finds "`that there exists an aggravating or mitigating
circumstance of a kind, or to a degree, not adequately taken into
consideration by the Sentencing Commission in formulating the
guidelines that should result in a sentence different from that
described.'" U.S.S.G. § 5K2.0, p.s. (quoting 18 U.S.C. § 3553(b)).
Whether downward departure was an option was not raised either in
the district court, or on appeal (except for reference to it by
Mendiola's lawyer in rebuttal at oral argument; he stated, among
other things, that if it were allowed, it would cure his due
process objection to the Guideline).      Accordingly, we do not
address its application vel non.     See, e.g., United States v.
Cisneros-Garcia, 14 F.3d 41 (10th Cir. 1994); United States v.
Weaver, 920 F.2d 1570 (11th Cir. 1991).

                                   - 8 -
