                                       [REVISED]                         [PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT                     FILED
                                                              U.S. COURT OF APPEALS
                           ________________________             ELEVENTH CIRCUIT
                                                                   AUGUST 2, 2000
                                                                 THOMAS K. KAHN
                                  No. 98-3829                         CLERK
                             Non-Argument Calendar
                           ________________________

                        D. C. Docket No. 97-140-Cr-T-17E

UNITED STATES OF AMERICA,
                                                                  Plaintiff-Appellee,

                                       versus

HAROLD GROSS,
                                                               Defendant-Appellant.

                           ________________________

                   Appeal from the United States District Court
                       for the Middle District of Florida
                        _________________________

                                  (May 26, 2000)


Before ANDERSON, Chief Judge, DUBINA and FAY, Circuit Judges.

PER CURIAM:

      This case presents an issue of first impression in this Court: whether a

preliminary order of forfeiture is final and immediately appealable. We hold that this
preliminary order of forfeiture is final and immediately appealable and we set aside

this forfeiture and remand to the district court for a hearing.

      Defendant-appellant, Harold Gross, was convicted of conspiracy to distribute

marijuana in violation of 21 U.S.C. § 846 and sentenced to 24 months of

incarceration. The indictment provided for the forfeiture of any property derived from

or used to facilitate the commission of a charged offense, as prescribed by 21 U.S.C.

§ 853. Following Gross’s plea colloquy, the Government moved for a preliminary

order of forfeiture of the property located at 7464 Teaberry Street. Gross objected on

the grounds that the property was not subject to forfeiture. Forfeiture of the property

was not discussed during the course of the sentencing hearing. Sometime after the

sentencing hearing, the district court entered the preliminary order of forfeiture1 for

the Teaberry Street property and Gross appealed the order.

      Initially, we hold that, under the facts of this case, the district court’s

preliminary order of forfeiture is final and immediately appealable. This is a matter

of first impression in this Court, but four other circuits have addressed the question

and determined that such an order is final and appealable because the order finally

determines the defendant’s rights in the forfeited property. See United States v.


      1
       The term preliminary order of forfeiture is probably inaccurate and certainly
misleading as discussed in United States v. Kennedy, 201 F.3d 1324, 1326 n.5 (11th
Cir. 2000). This is in fact a final order of forfeiture as to this defendant.

                                           2
Pelullo, 178 F.3d 196, 202-203 (3rd Cir. 1999); United States v. Bennett, 147 F.3d

912, 914 (9th Cir. 1998); United States v. Christunas, 126 F.3d 765, 767-68 (6th Cir.

1997); United States v. Libretti, 38 F.3d 523, 526-27 (10th Cir. 1994), aff’d, 516 U.S.

29 (1995). We agree with the reasoning of those courts.

      We review whether a sufficient factual nexus exists to support the criminal

forfeiture for clear error. See Libretti v. United States, 516 U.S. 29, 42 (1995). The

Government concedes that the district court erred by entering the preliminary order

of forfeiture because the record in this case fails to establish any factual nexus

between the offense of conviction and the Teaberry Street property. Therefore, we

vacate the preliminary order of forfeiture and remand to the district for a hearing.

VACATED AND REMANDED.




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