                                                                        [PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT                     FILED
                                                            U.S. COURT OF APPEALS
                          ________________________            ELEVENTH CIRCUIT
                                                                  MAY 26 2000
                                                               THOMAS K. KAHN
                                 No. 98-3829                        CLERK
                            Non-Argument Calendar
                          ________________________

                      D. C. Docket No. 97-00140-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, Circuit Judge, and FAY, Senior Circuit
      Judge.

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 a
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. The district court entered

the preliminary order of forfeiture for the Teaberry Street property and Gross appealed

the order.

      Initially, we hold that 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. 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




                                            2
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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