UNITED STATES of America, Appellee, v. Leon LOWE, Defendant-Appellant, 193 F. App'x 64

SUMMARY ORDER Appellant Leon Lowe appeals from a judgment of the United States District Court for the Southern District of New York (Howell, /.) entered on October 5, 2004. Lowe pleaded guilty to both counts of a two-count indictment charging him with (1) depositing fraudulently negotiated credit card convenience checks in violation of 18 U.S.C. § 1344 and (2) using credit card numbers issued to other persons, without their consent, in violation of 18 U.S.C. § 1029(a)(5).

The district court sentenced Lowe principally to 42 months’ imprisonment and five years’ supervised release and ordered Lowe to make restitution in the amount of $16,688. Familiarity by the parties is assumed as to the facts, the procedural context, and the specification of issues. First, Lowe challenges the district court’s determination of “total loss” under

section 2B1.1(b)(1) of the Sentencing Guidelines. See USSG § 2Bl.l(b)(l) (Nov. 2003). We reject Lowe’s argument that the district erred in determining total loss under the preponderance standard. “Judicial authority to find facts relevant to sentencing by a preponderance of the evidence survives [United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) ],” United States v.

Garcia, 413 F.3d 201, 220 n. 15 (2d Cir.2005), and a district court must apply the preponderance standard even to judicial fact-finding relating to uncharged offense conduct, see id. at 222-24 (affirming the sentencing court’s application of a preponderance standard in determining uncharged drug quantities and uncharged role determinations); United States v. Agudelo, 414 F.3d 345, 349-52 (2d Cir.2005) (affirming the sentencing court’s application of a preponderance standard in applying an uncharged obstruction of justice enhancement).

Reviewing the district court’s findings underlying its loss calculation for clear error, see Garcia, 413 F.3d at 222, we find none. Second, Lowe contends that the restitution order violates the Sixth Amendment as construed in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), because it is based on facts that were neither proved beyond a reasonable doubt to a jury nor admitted by him in his plea allocution. However, we have recently held that judicial fact-finding in connection with a restitution order does not raise the Sixth Amendment concerns identified in Booker.

See United States v. Reifler, 446 F.3d 65, 118 (2d Cir.2006); see also United States v. Boccagna, 450 F.3d 107, 108-09 (2d Cir.2006). Accordingly, we reject as without merit Lowe’s constitutional challenge to the restitution order. Finally, we agree that Lowe is entitled to a remand for resentencing under United States v. Fagans, 406 F.3d 138 (2d Cir.2005). For the reasons set forth above, the district court’s judgment is hereby AFFIRMED IN PART and the case is REMANDED to the district court with instructions to vacate the sentence and resentence in conformity with Booker and Fagans.

Any appeal taken from the district court following this remand and resentencing can be initiated only by filing a new notice of appeal. See For the Court Fed. RApp. P. 3, 4(b).