The Volokh Conspiracy
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Court Upholds 15-Year Sentence for Multiple Politically Motivated Arsons of Walmarts
From U.S. v. Olson, decided yesterday by Eleventh Circuit Judge Ed Carnes, joined by Judges Andre Brasher and Charles Wilson:
During a two-week period …, Olson conspired with seven others to set fires in four different Walmart stores. They set the fires during business hours while customers, children, and employees were still inside the stores. The fires caused confusion, chaos, and fear….
In early 2021, Alexander Olson moved to Lillian, Alabama, with his brother, Quinton Olson, and his friend, Michael Bottorff, who became two of his co-conspirators, to live in a house already occupied by his other soon-to-be co-conspirators, Jeffrey Sikes, Erica Sikes, Sean Bottorff, Jenna Bottorff, and Mikayla Scheele. After moving in, Olson became involved in meetings (that sometimes lasted all day) in which the eight co-conspirators planned the Walmart fires.
Jeffrey Sikes was unquestionably the leader of the pack. On the night before the first fire, he instructed co-conspirators Olson, Sean Bottorff, and Mikayla Scheele to pack bags with tactical gear and clothes in preparation for the next day's operation. When that day arrived, Olson, Scheele, and Sikes entered the first Walmart during normal business hours, while Bottorff stayed in the getaway car. Sikes told Olson and Scheele that once the three of them were inside the store, they should disperse, douse store merchandise with lighter fluid, and then set the merchandise on fire. Each one of them, including Olson, lit a fire inside the store. As those three fires broke out and spread, there was "mass chaos" as customers, including young children, and employees scrambled to get out of the store.
The next day, Olson and Scheele set fire to another Walmart in Mobile, Alabama. They followed a similar pattern to the one they had used the day before: they entered the store separately, found each other once inside, and then split up as Scheele set fires. As the two of them left the store, there were "a lot of people outside" as everyone tried to escape the burning store. The alarms were loud, the smoke was thick, people were scared and screaming.
On the way back home from that second fire, the group stopped at a different Walmart so that Olson could buy a cell phone. They planned to use that phone to anonymously send a document entitled "Declaration of War and Demands for the People" to various media outlets.
The "Declaration of War" characterized Walmart's policies and business practices as "a crime against humanity" that "validate[d]" the conspirators' "action of war against them." The document included seven demands that Walmart would have to meet for the fires at its stores to stop:
- Pay its employees $18/hour, regardless of full-time status (Demand 1)
- Pay 100% of each employee's health insurance premium (Demand 2)
- Give new moms six months maternity leave and new dads two months paternity leave (Demand 3)
- Pay its CEO no more than five times as much as its lowest-earning employee (Demand 4)
- Implement a climate plan (Demand 5)
- Supply 900 ready-to-eat meals (900 from each store) to people in need each day (Demand 6)
- Produce half of its goods in the United States within five years (Demand 7)
About a week later, Jeffrey Sikes, Olson, Scheele, and Sean Bottorff traveled to Mississippi. Olson and Scheele set the group's third fire in a Walmart in Gulfport. The resulting scene was just as "chaotic" as the two previous ones.
That wasn't the last crime the group committed or attempted. After the third Walmart fire, they stopped at a bank. With Olson in the car, Sikes strapped on Scheele what looked like a suicide vest, which "had three or four metal pipes on it with wires and then a phone connected to it." Sikes instructed her to go inside the bank wearing the vest and rob the bank. Olson watched without intervening. Scheele ultimately "broke down" and couldn't bring herself to enter the bank. Sikes yelled at her but he didn't put the vest on anyone else, and the group abandoned any attempt to rob that bank. As they left, Sikes pointed out an armored car at the bank and commented that Scheele "probably would have been shot" if she had actually gone in the bank strapped with the vest.
The group turned its attention back to Walmart. That same night, Olson and Scheele set fire inside a fourth Walmart in Biloxi, Mississippi. Although it was late at night, customers and children were still inside when the fire started. That was the group's last fire.
Olson was prosecuted for "maliciously setting fires to 'damage and destroy, and attempt to damage and destroy, by means of fire, buildings and other personal and real property'" (and conspiracy to do so). He pleaded guilty, and the government recommended a sentence of 5 years in prison. The recommended sentence under the advisory sentencing guidelines would normally have been 41 to 51 months, but the statutory minimum was 5 years (the statutory maximum being 20 years), which led to an advisory guidelines recommendation of 5 years.
The district court disagreed with the government recommendation, and sentenced Olson to 15 years. The appellate court upheld the district court's sentencing decision:
A district court must consider the 18 U.S.C. § 3553(a) factors "in determining the particular sentence to be imposed." {Those factors are: (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need for the sentence imposed (A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes of the defendant; and (D) to provide the defendant with needed [treatment]; (3) the kinds of sentences available; (4) the kinds of sentence and the sentencing range … ; (5) any pertinent policy statement (A) issued by the Sentencing Commission … ; (6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and (7) the need to provide restitution to any victims of the offense.} …
Absent a procedural error, and none is present here, we will vacate a defendant's sentence only "if we are left with the definite and firm conviction that the district court committed a clear error of judgment in weighing the § 3553(a) factors by arriving at a sentence that lies outside the range of reasonable sentences dictated by the facts of the case." "A sentence well below the statutory maximum indicates reasonableness."
Olson challenges the weight the district court gave to certain factors. He argues that the court ignored: (1) mitigating circumstances, including information about his personal history included in the PSR and details contained in the psychologist's report that he filed with the court; (2) that he was less culpable than Sikes; (3) his assertions about his low chance of recidivism; and (4) the influence of Sikes' "powers of persuasion and leadership" on Olson's actions.
Each of Olson's arguments of procedural error fails because the district court did explicitly consider all of those circumstances and facts that Olson says it ignored. First, the court did consider his mitigating circumstances as detailed in the PSR and in the psychologist's report. Second, the court did consider the relative culpability of Olson and Jeff Sikes—and notably did sentence Olson to a shorter sentence than Sikes [who was sentenced to 18 years -EV]. Third, the court did consider his argument that he had a low chance of recidivism. Fourth, the court did consider the "powers of persuasion" that Jeff Sikes exercised over Olson.
At its core, Olson's arguments are less about a failure to consider factors than about the relative weight the court gave to particular factors. The district court was free to weigh the § 3553(a) factors as it saw fit when considering them. The weight to be assigned to any one factor falls squarely within the district court's broad sentencing discretion.
The district court considered the § 3553(a) factors—explicitly discussing the seriousness of the offense and the need for deterrence, incapacitation, and just punishment as factors meriting an upward deviation from the guidelines. It also highlighted other specific details about Olson's crime that took his "case outside the heartland of regular arson guidelines": the more than $7 million in property damage; the risk to human life presented by setting fire to four separate Walmart stores during business hours; and the political motivation behind the fires.
The district court supported its significant upward variation "with significant justifications." Not only that but Olson's sentence of 180 months is well below the statutory maximum of 240 months, which is another indicator of its reasonableness. Olson's sentence was "in the ballpark of permissible" outcomes, making it substantively reasonable as a variance. If viewed as a variance, the sentence stands.
Here's more on Olson's history and on the trial judge's decision:
As to Olson's personal history, the PSR recounted that, when he was just two years old, he was sexually abused at a daycare center. His mother told the probation officer that Olson does not like to speak about the incident. And she told the defense's retained psychologist that Alexander did not remember the alleged molestation "at the time or later in life." His parents divorced when he was three years old, and he lived with his mother until the age of fourteen. After that, he lived with his father until he was eighteen years old. During that time, while under the influence of alcohol, his father physically and verbally abused him.
After Olson joined the United States Navy in 2017, he was diagnosed with "adjustment disorder with depressed mood," which ultimately led to his "uncharacterized (entry level separation) discharge" after only two months in the Navy. After his discharge from the Navy, Olson twice received inpatient mental health treatment—once in May 2018 after expressing suicidal thoughts and again in December 2019 after reporting he had attempted suicide.
Before the sentence hearing, Olson filed with the court a copy of a report from Dr. James Stefurak, a licensed psychologist. That report recounted Olson's personal history and expressed opinions about his mental and emotional instability. The report stated that Olson had a strong need for male validation. It also expressed the view that Olson "remains at risk of being drawn into behaviors that could lead to recidivism but is unlikely to initiate or voluntarily seek out criminal and norm-violating behaviors in the future."
Over the government's objection, the district court considered Dr. Stefurak's report. In deciding to do so, the court referred to the "hold" the group's leader, Jeffrey Sikes, had over each member of the group and noted that, "but for Mr. Sikes, [these fires] would not have occurred."
Olson argued that the mandatory minimum guidelines range sentence of 60 months imprisonment was appropriate based on the nature and circumstances of the offense, specifically the influence that codefendant and group leader, Jeffrey Sikes, had on Olson's actions. He asked the court to ensure that his sentence reflected that he was less culpable than Sikes. Olson asserted that because of his own young age (22 years old at the time the crimes were committed), his vulnerable mental state, and the unlikelihood that someone with Sikes' charisma would take hold of him again, he had a low risk of recidivism.
Olson called his aunt as a witness at the hearing, and she spoke well of his character. Then in allocution, he expressed his remorse for his actions and promised that he would not reoffend.
In sentencing Olson, the court found that co-conspirator Jeffrey Sikes was, in fact, the most culpable person in the conspiracy and that distinctions should be drawn between Sikes and the other members of the conspiracy, including Olson. Still, the court stated that several factors "t[ook] this case outside the heartland of regular arson guidelines." It noted the reality that the conspiracy involved more than one fire, which meant Olson had conspired and acted to put many people at risk. The court was "shocked that there was no loss of life" due to the fires and noted that the fires had caused great financial loss to Walmart.
The court also took into account the group's motives for setting the fires. It explained that the guidelines did not account for the fact that the crimes had a "political agenda," which the group had set out in its "Declaration of War and Demands for the People" as designed to radically affect the conduct of Walmart as an ongoing business. The court also noted the attempt to manipulate the media by sending to various outlets the group's "Declaration of War and Demands for the People." And it emphasized Olson's presence and failure to protest when Sikes strapped what looked like a suicide vest to Scheele and ordered her to rob a bank. That, the court reasoned, demonstrated Olson's willingness to condone that type of "very dangerous activity."
Speaking directly to Olson, the court held him accountable for his criminal conduct, notwithstanding Sikes' influence on him: "While Mr. Sikes has powers of persuasion and leadership, he didn't force you to participate in this. You chose to participate in it, and I believe you knew, when you were participating in this, that it was wrong." The court rejected Olson's attempt to blame anyone else for his participation in the fires: "[There isn't] anything that made you do what you did other than you chose to become involved in this plot and its objectives." …
Scott Alan Gray represents the government.
