we vacated Kosinski’s initial sentence, explaining that the use of non-jury-found facts in applying mandatory guidelines presented the same constitutional problem at issue in Booker. Kosinski I, 127 Fed.Appx. at 750-51. And when the district court on remand resentenced Kosinski without making any findings whatsoever regarding the tax-loss amount — laboring “under the misapprehension that it simply could not do so” after Booker — we vacated the sentence again, clarifying that the district court “should recognize and exercise its discretion to consider — or not to consider — [Kosinski’s] tax loss.” Kosinski II, 480 F.3d at 777. That discretion undermines the Kosinskis’ contention that the district court’s tax-loss finding was necessary to the final judgment. Cf. Hickman, 183 F.3d at 538 (<HOLDING>); Morse v. Comm’r, 419 F.3d 829, 834 (8th
holding that a bor determination could not have preclusive effect on the different issue the jury faced holding that the appealability of a judgment  does not hinder its preclusive effect holding that the court erred in failing to inform the defendant that it could impose restitution but that the error did not affect the defendants substantial rights because the court informed the defendant that it could impose a maximum fine of an amount higher than the restitution amount imposed holding that a district courts discretionary determination of the amount of restitution a criminal taxevasion defendant had to pay was unnecessary to the judgment and thus could not be given preclusive effect holding that courts must look to the state that rendered the judgment to determine whether the courts of that state would afford the judgment preclusive effect