[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 23-13335

Non-Argument Calendar

____________________

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

versus

ALEXANDER LESZCZYNSKI, 

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Middle District of Florida

D.C. Docket No. 8:22-cr-00155-MSS-SPF-1

____________________

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2 Opinion of the Court 23-13335

Before NEWSOM, BRANCH, and ANDERSON, Circuit Judges.

PER CURIAM:

Alexander Leszczynski appeals his sentence of 210 months’ 

imprisonment for wire and bank fraud. He argues that the district 

court erred by denying his motion to withdraw his guilty plea 

because he moved to withdraw that plea before the district court 

accepted and adopted the magistrate judge’s report and 

recommendation, which recommended that Leszczynski’s guilty 

plea be accepted. Because Leszczynski had an absolute right to 

withdraw his guilty plea prior to the district court accepting it, and 

his counsel’s subsequent “Motion to Clarify Defendant’s Motion to 

Withdraw Previously Entered Pleas of Guilt” (hereinafter “Motion 

to Clarify”) did not moot his motion to withdraw his guilty plea, 

we reverse. 

I. Background

Leszczynski was charged in an indictment with the 

following offenses:

• Count One – Wire Fraud in violation of 18 U.S.C. § 1343 for 

the transfer of $97,700 in first-round Small Business 

Association (“SBA”) Paycheck Protection Program (“PPP”) 

funds;

• Count Two – Wire Fraud in violation of 18 U.S.C. § 1343 

for the transfer of $98,210 in second-round SBA PPP funds;

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23-13335 Opinion of the Court 3

• Count Three – Wire Fraud in violation of 18 U.S.C. § 1343 

for the transfer of a warranty deed for a property in Pinellas 

County, Florida;

• Count Four – Bank Fraud in violation of 18 U.S.C. §§ 1344 

and 2 for depositing a fraudulent check in the amount of 

$4,995;

• Count Five – Bank Fraud in Violation of 18 U.S.C. §§ 1344 

and 2 for depositing a fraudulent check in the amount of 

$300,000;

• Count Six – Illegal Monetary Transaction in violation of 

18 U.S.C. § 1957 and 2 for a monetary transfer of $239,000;

• Count Seven – Illegal Monetary Transfer in violation of 

18 U.S.C. § 1957 and 2 for a monetary transfer of 

$346,959.56; and

• Count Eight – Illegal Monetary Transfer in violation of 18 

U.S.C. § 1957 and 2 for a monetary transfer of $337,000.

Over the course of the criminal proceedings, Leszczynski’s

counsel changed multiple times. Ronald J. Kurpiers, II, 

Leszczynski’s fourth attorney, requested to have Leszczynski’s 

mental competency evaluated because Kurpiers was concerned 

“that [Leszczynski’s] ability to assist in his defense and to truly 

understand the charges and resulting court procedures before him 

[was] compromised and not of sufficient ability to move forward 

without a full and thorough evaluation of mental competency.” 

The district court granted the request, and ordered that Dr. Valerie 

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4 Opinion of the Court 23-13335

R. McClain, PsyD., conduct an independent psychiatric 

examination of Leszczynski. 

Dr. McClain evaluated Leszczynski and “found him to be 

competent to proceed to trial.” She determined that Leszczynski’s

“thought processes were clear, logical, and goal directed” and that 

“his estimated intelligence level is likely in the average range.” 

Ultimately, she found that Leszczynski was (1) aware of the charges 

against him; (2) understood the range and nature of possible 

penalties he faced if convicted; (3) understood the adversarial 

nature of the criminal proceedings; (4) had the capacity to disclose 

pertinent facts; (5) had the ability to behave in accordance with 

appropriate courtroom protocol; and (6) had the capacity “to testify 

on his own behalf and assist his attorney in a rational manner.” 

Accordingly, it was her opinion that Leszczynski was competent to 

proceed to trial. 

The district court held a competency hearing pursuant to 

18 U.S.C. § 4241. At the competency hearing, Kurpiers stated that 

the defense stood by Dr. McClain’s evaluation and stipulated to her 

findings. When questioned by the district court, Leszczynski 

agreed with his counsel’s representation. Defense did not offer any 

other evidence regarding Leszczynski’s mental state. Accordingly, 

the district court found that Leszczynski was competent to stand 

trial. 

Shortly after the district court found Leszczynski 

competent, Leszczynski and the government reached a plea 

agreement. Per the terms of the agreement, Leszczynski agreed to 

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23-13335 Opinion of the Court 5

plead guilty to Counts One, Three, and Four of the Indictment, and 

the government would drop the other charges. 

On November 21, 2022, Leszczynski appeared before a 

magistrate judge to plead guilty to Counts One, Three, and Four.1 

After extensive questioning, the magistrate judge found that 

Leszczynski was “fully competent and capable of entering an

informed plea” and was “aware of the nature of the charges and the 

consequences of the plea.” The magistrate judge determined that 

Leszczynski’s plea of guilty was “knowing and voluntary and 

supported by an independent basis in fact which satisfies each of 

the essential elements of the offenses.” Accordingly, the magistrate 

judge issued a report and recommendation (hereinafter “report”), 

recommending that the district court accept Leszczynski’s guilty 

plea. 

Less than one month later, and before the district court had 

ruled on the magistrate judge’s report, Kurpiers filed a motion to 

withdraw Leszczynski’s guilty plea.2 The motion noted that the 

1 At the hearing, Leszczynski also pleaded guilty to charges from another 

criminal case, wherein he was charged with attempting to hire a third party to 

murder witnesses in the instant case. We do not address his appeal of his 

sentence in the murder-for-hire case in this opinion. See United States v. 

Alexander Leszczynski, No. 23-13743 (11th Cir. appeal docketed Nov. 14, 2023). 

2 In conjunction with the motion to withdraw, Kurpiers also filed a motion to 

have Leszczynski’s competency to stand trial re-evaluated based on 

Leszczynski’s demand to him to be re-evaluated. In that motion, Kurpiers

stated that he did not believe the Leszczynski’s demand to be re-evaluated was 

in good faith and that he could not represent to the court that the request was 

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6 Opinion of the Court 23-13335

timing of a request to withdrawal is important because pursuant to 

Rule 11(d)(1) of the Federal Rules of Criminal Procedure, “[a] 

defendant has an absolute right to withdraw a guilty plea before 

the district court accepts it.”3 Four days after filing the motion to 

withdraw, however, Kurpiers filed a Motion to Clarify wherein he 

stated that Leczszynski had told him that he wished “to keep his 

pleas of guilt to [the relevant] charges despite claiming he is 

innocent of the charges to which he plead.” Kurpiers indicated he 

was left with a dilemma as to how to proceed and therefore 

requested the district court to “hold an evidentiary hearing to 

determine [Leszczynski’s] decision to either [w]ithdraw his 

previously entered [guilty] plea . . . or move forward with 

acceptance of his plea as is.” 

The district court held a hearing on Leszczynski’s motion to 

withdraw his guilty plea. At the hearing, Kurpiers stated that 

Leszczynski had given him conflicting accounts about whether he 

wanted to withdraw his guilty plea or not and that as of the time of 

the hearing he didn’t know what Leszczynski wanted to do. The 

district court asked Leszczynski if it was “still [his] desire to 

not done with the intention of delaying proceedings. The district court held a 

hearing on that motion and denied Leszczynski’s request to be re-evaluated. 

3 Despite noting that Federal Rule of Criminal Procedure 11(d)(1) grants a 

defendant an unconditional right to withdraw a guilty plea before the district 

court accepts it—and the fact the district court had not yet accepted 

Leszczynski’s guilty plea—the motion nevertheless incorrectly asserted that 

Leszczynski needed to show a fair and just reason for requesting the 

withdrawal pursuant to Rule 11(d)(2). 

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23-13335 Opinion of the Court 7

withdraw [his] plea . . . or [did] [he] wish to keep the plea in place 

in [the fraud] case?” Leszczynski answered that he wasn’t sure, but 

that he wanted to get a second opinion from another attorney. 

The district court told Leszczynski that he had already 

entered a plea before the magistrate judge who had found him 

“fully competent and capable and able to understand the plea that 

[he] w[as] entering and the consequences of the plea” and that “[t]o 

withdraw [his] plea is a very, very high standard[.]” The court 

determined it had no basis to believe that Leszczynski was 

currently incompetent, or was otherwise incompetent at the time 

he entered his plea before the magistrate judge. Throughout the 

hearing, Leszczynski indicated that he wanted to pursue a not 

guilty by reason of insanity defense. Despite not having previously 

adopted the magistrate judge’s report recommending the district 

court accept Leszczynski’s guilty plea, the district court determined 

there was no legal or medical basis for Leszczynski for it to allow 

Leszczynski to back out of his plea agreement. Accordingly, the 

district court adopted the magistrate judge’s report and denied 

Leszczynski’s motion to withdraw his guilty plea. 

Leszczynski was sentenced to 210 months’ imprisonment 

followed by 5 years of supervised released. He requested to have 

new counsel appointed for his appeal, which the district court 

granted. He timely appealed his conviction and sentence. 

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8 Opinion of the Court 23-13335

II. Standard of Review

“We review a district court’s denial of a motion to withdraw 

a guilty plea for an abuse of discretion.” United States v. Symington, 

781 F.3d 1308, 1312 (11th Cir. 2015). 

III. Discussion

On appeal, Leszczynski argues that the district court abused 

its discretion in denying his motion to withdraw his guilty plea 

because he had an absolute right to withdraw the plea prior to the 

district court accepting it. Relying on the First Circuit’s opinion in 

United States v. Davila-Ruiz, 760 F.3d 249 (1st Cir. 2015), he argues 

that the district court had no discretion to deny his motion to 

withdraw his guilty plea because it had not yet accepted the 

magistrate judge’s report.4 The government argues that the district 

court did not abuse its discretion because, in its view, Leszczynski 

withdrew his motion to withdraw his guilty plea when his lawyer 

filed the Motion to Clarify and did not otherwise renew his request 

to withdraw his guilty plea at the hearing. Upon review, we 

disagree with the government. 

4 In Davila-Ruiz, the First Circuit vacated a defendant’s conviction and 

sentence because the district court improperly denied his motion to withdraw 

his guilty plea prior to the district court accepting the magistrate judge’s 

report, which, like the report in the instant case, recommended the district 

court accept the guilty plea. See 790 F.3d 249. 

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Rule 11(d)(1) of the Federal Rules of Criminal Procedure 

provides that “[a] defendant may withdraw a plea of guilty . . . 

before the court accepts the plea, for any reason or no reason.” 

Fed. R. Crim. P. 11(d)(1). Our sister circuits have described this as 

an “absolute right” to withdraw a guilty plea prior to the district 

court accepting it. United States v. Andrews, 857 F.3d 734, 739 (6th 

Cir. 2017); Davila-Ruiz, 790 F.3d at 251; United States v. Tyerman, 641 

F.3d 936, 936 (8th Cir. 2011); United States v. Arami, 536 F.3d 479, 

483 (5th Cir. 2008). Accordingly, Leszczynski had an absolute right 

to withdraw his guilty plea when Kurpiers filed the motion to 

withdraw Leszczynski’s guilty plea prior to the district court 

accepting the magistrate judge’s report. And despite the 

government’s arguments to the contrary, the record does not 

support the conclusion that Leszczynski withdrew his motion to 

withdraw the guilty plea when Kurpiers filed the Motion to Clarify. 

While Kurpiers may have been confused about how Leszczynski 

wanted to proceed, the only relief sought in the Motion to Clarify 

was an evidentiary hearing to determine how Leszczynski wanted 

to move forward. And at the evidentiary hearing, Leszczynski 

expressed multiple times his desire to pursue a not guilty by reason 

of insanity defense, which indicated that he wanted to withdraw 

his guilty plea and proceed to trial. While the district court may 

have had valid doubts about the viability of such a defense and

Leszczynski’s motives in seeking to change his plea, Leszczynski 

had the right to withdraw his plea “for any reason or no reason”

prior to the district court accepting the plea. Fed. R. Crim. P. 

11(d)(1). The district court incorrectly applied the heightened 

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standard of Rule 11(d)(2)5 when it stated that the bar for 

Leszczynski to withdraw his plea, before it had accepted the plea, 

was very high. Accordingly, the district court necessarily abused 

its discretion when it denied Leszczynski’s motion to withdraw his 

guilty plea.

VACATED AND REMANDED.

5 Rule 11(d)(2) provides that a defendant may withdraw a guilty plea after the 

court has accepted it, but before the court has imposed a sentence, only if the 

court rejects the plea agreement pursuant to Rule 11(c)(5) or “the defendant 

can show a fair and just reason for requesting the withdrawal.” Fed. R. Crim. 

P. 11(d)(2). 

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