FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT AUGUST 2, 2000 THOMAS K. KAHN CLERK [REVISED] [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

________________________ No. 98-3829 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 firs t impression in this Court: whether a preliminary order of forfeitureis final and immediately a ppealable. We hold that this1 The term preliminary orde r of forfeiture is probabl y inaccurate and certainly misleading as discussed inUnited States v. Kennedy , 201 F.3d 1324, 1326 n.5 (11th Cir. 2000). This is in fact a final or der of forfeiture as to this defendant. 2 preliminary order of forfeiture is final a nd 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 ch arged 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 th e sentencing hearing. Sometime after the sentencing hearing, the district court entered the preliminary order of forfeiture 1 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 C ourt, but four other circuits have addressed the question and determined that such an order is fi nal and appealable because the order finally determines the defendant’s rights in the forfeited property. See United States v.3 Pelullo , 178 F.3d 196, 202-203 (3rd Cir. 1999); United States v. Bennett , 147 F.3d 912, 914 (9th Cir. 1998); Unite d 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 factua l 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 c ourt 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 T eaberry Street property. Therefore, we vacate the preliminary order of forfeiture and remand to the district for a hearing. VACATED AND REMANDED.