dissenting.
I concede that all federal courts of appeals have concluded that either Blakely v. Washington1 or United States v. Booker2 does not require a jury to determine the facts supporting restitution.3 But, under Blakely, I believe that allowing a sentencing court to order restitution without the defendant’s admitting the facts or a jury’s deciding the facts supporting restitution violates a defendant’s constitutional right to have a jury find any fact “ ‘which the law makes essential to the punishment.’ ”4
Although the U.S. Supreme Court has not yet decided whether a defendant has a right to a jury trial to determine restitution, *760it seems to me that many courts are too quick to apply their Apprendi rationales and too reluctant to consider the effect of Blakely on restitution. Because we have held that restitution is criminal punishment, this court should decline to join the parade.
Restitution under Neb. Rev. Stat. § 29-2280 (Reissue 1995) is a criminal penalty imposed as punishment for a crime and is part of the criminal sentence.5 Under Neb. Rev. Stat. § 29-2281 (Reissue 1995), before restitution can be properly ordered, the trial court must consider: (1) whether restitution should be ordered, (2) the amount of actual damages sustained by the victim of a crime, and (3) the amount of restitution a criminal defendant is capable of paying.6
These factors indisputably require factfinding.7 And we have held that because restitution is punishment, “ ‘the certainty and precision prescribed for the criminal sentencing process applies to criminal sentences containing restitution ordered pursuant to § 29-2280.’”8
In contrast, some of the federal courts of appeals that have concluded Blakely does not require a jury to find the facts supporting restitution have reasoned that restitution is a civil remedy.9 In U.S. v. Carruth, a three-judge panel of the Eighth Circuit reached this conclusion,10 despite the court’s earlier holding that restitution is a criminal penalty.11
*761The dissent in Carruth argued that “there is no principled basis on which to distinguish punishment for Ex Post Facto Clause and Sixth Amendment purposes.”12 It concluded that in Blakely, the term “statutory maximum” dictated “a conclusion that any dispute over the amount of restitution due and owing a victim of crime must be submitted to a jury and proved beyond a reasonable doubt.”131 agree. I also note that the U.S. Supreme Court has recently characterized restitution as criminal punishment.14
As the majority opinion states, the U.S. Supreme Court held in Apprendi v. New Jersey15 that any fact, other than a prior conviction, that increases the penalty for a crime beyond a prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. Apprendi was intended as a bright-line rule protecting the right to a jury trial under the Sixth Amendment.16 In commenting on the Sixth Amendment’s protection in Blakely, the Court distinguished civil law traditions and explained that the right to a jury trial is a fundamental reservation of power in our constitutional structure to ensure the people’s control in the judiciary branch: “Apprendi carries out this design by ensuring that the judge’s authority to sentence derives wholly from the jury’s verdict.”17
In the wake of Apprendi, some circuit courts rejected challenges to a judge’s factfinding for determining restitution. They concluded that any statutory maximum must be found in the applicable restitution statute and that these statutes do not have a *762prescribed statutory maximum.18 For example, in U.S. v. Ross,19 after the jury convicted the defendant of wire fraud, the court ordered restitution of $2.7 million “to victims beyond those affected by the specific wire transactions submitted to the jury to prove wire fraud.” The defendant argued that the order violated Apprendi because a jury did not determine the facts regarding restitution. The Eighth Circuit rejected that argument and held that an order of restitution does not increase the penalty for the crime of wire fraud beyond the prescribed statutory maximum because the restitution statute had no definite amount that could be exceeded.20
After the U.S. Supreme Court decided Blakely21 and Booker,22 many circuit courts adopted the same rationale that restitution statutes contained no statutory maximum; most of those circuits cited to their sister circuits or omitted any comprehensive analysis of the Blakely definition of “statutory maximum.”23 Only two of these circuit courts even stated or discussed the Blakely definition of “statutory maximum.”24 Of these two courts, the Second Circuit conceded that “[t]he matter of whether the substantive holding of Booker applies to orders of restitution is not entirely clear from some of the language of Blakely and Booker.” 25
But as the dissent in Carruth concluded, the U.S. Supreme Court’s decision in Blakely meant that “the notion Apprendi *763does not apply to restitution because restitution statutes do not prescribe a maximum amount ... is no longer viable.”26 There now exists “a completely different understanding of the term prescribed statutory maximum.”27 It is difficult to ignore what the Court emphatically stated in Blakely:
[T]he relevant “statutory maximum” [for Apprendi purposes] is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings. When a judge inflicts punishment that the jury’s verdict alone does not allow, the jury has not found all the facts ‘which the law makes essential to the punishment.’. . .”28
“That right [to have the jury find the existence of any particular fact that the law makes essential to a defendant’s punishment] is implicated whenever a judge seeks to impose a sentence that is not solely based on ‘facts reflected in the-jury verdict or admitted by the defendant.’ ”29
Under our case law, we do know this: There is no question that restitution is the infliction of punishment, nor is there any question under our statutes that a jury does not find the relevant facts regarding restitution. I conclude that other courts’ nuanced dances around Blakely are not persuasive.
First, I disagree with the observation made in U.S. v. Leahy that a distinction exists between restitution and prison sentences for Blakely purposes: “orders of restitution have little in common with the prison sentences challenged by the defendants in Jones,[30] Apprendi, Blakely and' Booker.”31 I do not read *764Blakely as limited to statutory sentencing schemes with multiple offense levels; it applies to “punishment” broadly. As the dissent in the Third Circuit case noted, the majority’s reasoning does not comport with the U.S. Supreme Court’s reasoning in Pasquantino32: “‘The purpose of awarding restitution [for the crime of wire fraud was] not to [benefit the foreign government defrauded of tax revenues], but to mete out appropriate criminal punishment for that conduct.’ ”33
Before finishing, I note the U.S. Supreme Court has held that restitution imposed as a condition of probation in a criminal sentence may not be discharged as a debt in bankruptcy under a provision that preserves debts for criminal fines, penalties, and forfeiture:
The criminal justice system is not operated primarily for the benefit of victims, but for the benefit of society as a whole. . . . Although restitution does resemble a judgment “for the benefit of’ the victim ... the decision to impose restitution generally does not turn on the victim’s injury, but on the penal goals of the State and the situation of the defendant.34
Because the Court has equated restitution with criminal fines and penalties, it seems unlikely that it would exempt restitution under Blakely as a type of punishment that does not invoke a defendant’s right to a jury trial.
The relevant question under Blakely is whether the sentencing court has imposed punishment without making any findings in addition to those supported by the jury’s verdict or the defendant’s admissions. That question must be answered affirmatively when a court, on its own findings, imposes restitution, regardless of whether restitution is considered an enhancement to a term of imprisonment or is simply part of the sentence. Restitution is unquestionably punishment that is part of the defendant’s *765sentence, and “every defendant has the right to insist that the prosecutor prove to a jury all facts legally essential to the punishment.”35 I would reverse.
Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005).
See, U.S. v. Milkiewicz, 470 F.3d 390 (1st Cir. 2006); U.S. v. Reifler, 446 F.3d 65 (2d Cir. 2006); U.S. v. Leahy, 438 F.3d 328 (3d Cir. 2006) (en banc); U.S. v. Nichols, 149 Fed. Appx. 149 (4th Cir. 2005); U.S. v. Garza, 429 F.3d 165 (5th Cir. 2005); U.S. v. Sosebee, 419 F.3d 451 (6th Cir. 2005); U.S. v. Swanson, 394 F.3d 520 (7th Cir. 2005); U.S. v. Carruth, 418 F.3d 900 (8th Cir. 2005) (rehearing en banc denied); U.S. v. Bussell, 414 F.3d 1048 (9th Cir. 2005); U.S. v. Visinaiz, 428 F.3d 1300 (10th Cir. 2005); U.S. v. Williams, 445 F.3d 1302 (11th Cir. 2006).
Blakely v. Washington, supra note 1, 542 U.S. at 304.
State v. Dittoe, 269 Neb. 317, 693 N.W.2d 261 (2005); State v. Holecek, 260 Neb. 976, 621 N.W.2d 100 (2000).
State v. Holecek, supra note 5.
See, State v. Wells, 257 Neb. 332, 598 N.W.2d 30 (1999); State v. McLain, 238 Neb. 225, 469 N.W.2d 539 (1991); State v. Yost, 235 Neb. 325, 455 N.W.2d 162 (1990).
State v. Holecek, supra note 5, 260 Neb. at 981, 621 N.W.2d at 104, quoting State v. McGinnis, 2 Neb. App. 77, 507 N.W.2d 46 (1993).
See, U.S. v. George, 403 F.3d 470 (7th Cir. 2005); U.S. v. Carruth, supra note 3; U.S. v. Visinaiz, supra note 3.
See U.S. v. Carruth, supra note 3.
See U.S. v. Ross, 279 F.3d 600 (8th Cir. 2002).
U.S. v. Carruth, supra note 3, 418 F.3d at 905 (Bye, Circuit Judge, dissenting).
Id.
See Pasquantino v. United States, 544 U.S. 349, 125 S. Ct. 1766, 161 L. Ed. 2d 619 (2005).
Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).
See Blakely v. Washington, supra note 1.
Id., 542 U.S. at 306.
See, e.g., U.S. v. Syme, 276 F.3d 131 (3d Cir. 2002); U.S. v. Bearden, 274 F.3d 1031 (6th Cir. 2001); U.S. v. Ross, supra note 11.
U.S. v. Ross, supra note 11, 279 F.3d at 608.
U.S. v. Ross, supra note 11.
Blakely v. Washington, supra note 1.
United States v. Booker, supra note 2.
See, U.S. v. Milkiewicz, supra note 3; U.S. v. Nichols, supra note 3; U.S. v. Garza, supra note 3; U.S. v. Sosebee, supra note 3; U.S. v. Swanson, supra note 3; U.S. v. Carruth, supra note 3; U.S. v. Bussell, supra note 3; U.S. v. Williams, supra note 3.
See, U.S. v. Reifler, supra note 3; U.S. v. Leahy, supra note 3.
U.S. v. Reifler, supra note 3, 446 F.3d at 115.
U.S. v. Carruth, supra note 3, 418 F.3d at 906 (Bye, Circuit Judge, dissenting).
Id.
Blakely v. Washington, supra note 1, 542 U.S. at 303-04 (emphasis in original).
United States v. Booker, supra note 2, 543 U.S. at 232, quoting Blakely v. Washington, supra note 1.
Jones v. United States, 526 U.S. 227, 119 S. Ct. 1215, 143 L. Ed. 2d 311 (1999).
U.S. v. Leahy, supra note 3, 438 F.3d at 338.
Pasquantino v. United States, supra note 14.
U.S. v. Leahy, supra note 3, 438 F.3d at 341 (McKee, Circuit Judge, concurring in part, and in part dissenting; Rendell, Ambro, Smith, and Becker, Circuit Judges, join).
Kelly v. Robinson, 479 U.S. 36, 52, 107 S. Ct. 353, 93 L. Ed. 2d 216 (1986).
Blakely v. Washington, supra note 1, 542 U.S. at 313 (emphasis in original).