at 490, 120 S.Ct. 2 he district court, we review this legal issue de novo. This is the first time we have been asked to apply Apprendi to a restitution order. Apprendi could only apply if the amount of restitution is based on (1) a “fact” other than a prior conviction not submitted to the jury, (2) that is used to increase the “penalty” for a crime (3) beyond a prescribed statutory maximum. The first two components suggest Appren-di may apply to restitution orders. First, a district court’s determination of the amount of restitution is a “fact.” E.g., United States v. Bartsh, 985 F.2d 930, 932 (8th Cir.1993). Second, restitution is a criminal “penalty.” United States v. Williams, 128 F.3d 1239, 1241 (8th Cir.1997). But see United States v. Behrman, 235 F.3d 1049, 1054 (7th Cir.2000) (<HOLDING>). The more difficult question, however, is
holding that equitable restitution is available but that legal restitution is not holding no restitution hearing is mandated when defendant did not object to order of restitution or request a hearing holding apprendi inapplicable to restitution orders because restitution for harm done is a classic civil remedy holding that downward departure based on defendants restitution was improper because restitution is taken into consideration in assessing whether acceptance of responsibility adjustment should apply and district court abused its discretion in finding defendants restitution was extraordinary holding that where the government has not presented evidence at the hearing concerning the appropriate amount of restitution    the imposition of the restitution order constitutes plain error