                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT



                                  No. 00-31447
                                Summary Calendar



                       UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee,

                                     versus

                             RILEY HAGAN, III,

                                                   Defendant-Appellant.

                         - - - - - - - - - -
           Appeal from the United States District Court
               for the Western District of Louisiana
                      USDC No. 99-CR-50095-ALL
                         - - - - - - - - - -
                             June 7, 2001
Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

     Riley Hagan, III, appeals his conviction and sentence for

conspiracy to misapply bank funds, a violation of 18 U.S.C. §§ 371

and 656.    He argues that his sentence is unconstitutional under

Apprendi v. New Jersey, 530 U.S. 466 (2000), because the amount of

misapplied funds and loss, essential elements of the offense of

conviction,    were   not   charged    in   the    bill   of   information      and

determined under a reasonable doubt standard.                  Hagan points out

that if the amount of funds misapplied does not exceed $1,000, the

predicate   offense    is   a    misdemeanor      and   the    maximum   term   of

imprisonment is one year.          See 18 U.S.C. §§ 371, 656.            However,

     *
        Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
                                 No. 00-31447
                                      -2-

Hagan admitted at the guilty-plea hearing that his actions caused

a loss to the bank of $4.8 million and he was advised that the

maximum possible        sentence   for    his   offense    was   five   years    of

imprisonment and/or a fine of $1 million.            He also acknowledged the

maximum    punishment     of    five   years’    imprisonment     in    his    plea

agreement.     See 18 U.S.C. § 371.        When the district court advises

the   defendant   of    the     maximum   possible    penalty    and    when    the

defendant agrees with the Government’s factual basis which sets out

the amount of drugs which would be proved at trial, Apprendi is not

violated.     See United States v. Salazar-Flores, 238 F.3d 672, 673-

74 (5th Cir. 2001); see also United States v. Fort, No. 00-10418,

2001 WL 388099, *6 (5th Cir. Apr. 17, 2001).               The same reasoning

applies to the amount of money lost pursuant to a scheme to

defraud.    Thus, the statutory maximum under the facts of this case

is five years of imprisonment.            As such, Hagan’s sentence of 25

months does not run afoul of Apprendi.

      Hagan    argues    that    the   district    court    clearly     erred    in

calculating the loss to the victim bank from his check-kiting

scheme.     He asserts that a net loss calculation should have been

used, thereby reducing the outstanding indebtedness by the amount

the bank could reasonably have expected to recover from the assets

securing that indebtedness, and by the $800,000 the bank received

pursuant to his civil settlement with it.            In a check-kiting case,

it is not the total of all checks used in the scheme ($14,182,500

in this case), but, rather, the amount of overdraft or loss when

the scheme is discovered ($4.8 million in this case) that is used

to determine the amount of loss.          See United States v. Frydenlund,
                              No. 00-31447
                                   -3-

990 F.2d 822, 826 & n.5 (5th Cir. 1993).             It is inappropriate to

reduce the amount of loss by subsequent settlement payments or

other uncertain collateral held by the bank.              Id.   The district

court did not clearly err in its loss calculation.

     Hagan argues that no victim in this case suffered a loss

compensable by restitution because pursuant to the confidential

settlement     agreement,    his    payment     of     settlement    proceeds

extinguished the underlying obligations.               Hagan argues in the

alternative that he was entitled to additional credits and/or

offsets of $1.6 million but he fails to specify the source of the

credits/offsets.     He contends that the court erred by ordering his

restitution order to be joint and several with his codefendants

because it results in double recovery for the bank of the $862,000

credited to him but not to his codefendants.           Hagan seeks remand on

the restitution issue so that the court may apportion it to reflect

the contribution of each codefendant to the bank’s overall loss.

     A civil settlement agreement does not preclude an award of

restitution because restitution is primarily penal in nature.               See

United States v. Sheinbaum, 136 F.3d 443, 447-48 (5th Cir. 1998).

Joint and several liability for restitution is authorized by

statute.     18 U.S.C. § 3664(h).        Nonetheless, pursuant to Hagan’s

civil settlement agreement with the bank, the bank will not obtain

double recovery.      Any such funds would be returnable to Hagan

pursuant to the bank’s assignment to him of judgments obtained

against his codefendants.

     The district court did not abuse its discretion in awarding

restitution    in   the   amounts   of    $1,135,243    to   the    bank,   and
                             No. 00-31447
                                  -4-

$2,847,000 to St. Paul Fire and Marine Insurance Company, to be

paid jointly and severally by all codefendants including Hagan.

     Hagan’s   motion   to   file   supplemental   record   excerpts   is

GRANTED.

     AFFIRMED; MOTION GRANTED.
