FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JUAN MARQUIS HOLIDAY,

Defendant-Appellant.

No. 20-50157

D.C. No.

3:17-cr-01370-AJB-1

OPINION

Appeal from the United States District Court

for the Southern District of California

Anthony J. Battaglia, District Judge, Presiding

Submitted April 16, 2021*

Pasadena, California

Filed May 27, 2021

Before: MILAN D. SMITH, JR., and SANDRA S. 

IKUTA, Circuit Judges, and JOHN E. STEELE,**

District Judge.

Opinion by Judge Milan D. Smith, Jr.

* The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).

** The Honorable John E. Steele, United States District Judge for the 

Middle District of Florida, sitting by designation.
2 UNITED STATES V. HOLIDAY

SUMMARY***

Criminal Law

The panel affirmed a defendant’s convictions and 

sentence for seven instances of armed robbery and three 

instances of attempted armed robbery.

The panel held that the district court erred by denying the 

defendant’s motion to suppress body camera footage taken 

during an unrelated police encounter at the defendant’s home 

in connection with the report of child abuse in a vehicle 

registered to the defendant’s home. In the footage, the 

defendant was wearing shoes that matched the description of

the shoes the suspect was wearing at an ARCO gas station in 

one of the robberies. The Government conceded that an 

officer’s opening the front door of the home constituted a 

search, but contended that the warrantless search was 

constitutional pursuant to the emergency exception to the 

warrant requirement. The panel held that the officers’ 

conduct did not fall within the scope of the emergency 

exception to the warrant requirement because the officers 

had no reason to believe that the child victim was in the 

home at the address where the vehicle was registered. The 

panel concluded, however, that the error in admitting the 

body camera evidence was harmless because of the strength 

of the other evidence that the defendant committed the 

ARCO robbery.

*** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
UNITED STATES V. HOLIDAY 3

The panel affirmed the district court’s denial of the 

defendant’s motion in limine to exclude video evidence of 

his flight from police pursuant to Fed. R. Evid. 404(b). The 

panel explained that the car chase video was not subject to 

Rule 404(b)(1), which sets forth prohibited uses. The panel 

wrote that even if the evidence would have been excluded 

under Rule 404(b)(1) if the Government had used it to prove 

the defendant’s character, (a) the video was admissible under 

Rule 404(b)(2) to prove the defendant’s identity as the 

person who committed several robberies while wearing the 

same sweatshirt he wore in the video, and, in one robbery, 

using the same gun that was found near where he was sitting 

in the fleeing car; and (b) admission of the video was not an 

abuse of discretion because it was relevant and not more 

prejudicial than probative.

Affirming the district court’s denial of the defendant’s 

motion to sever the offenses, the panel explained that under 

its plain text, Fed. R. Crim. P. 8(a) lists the three criteria for 

when joinder of multiple offenses is permitted in the 

disjunctive.

The panel held that United States v. Harris, 154 F.3d 

1082 (9th Cir. 1998), compels the conclusion that the 

defendant’s 85-year prison sentence for his role in ten 

robberies does not violate the Eighth Amendment.

The panel wrote that it is not at liberty to overrule the 

three-judge panel’s decision in United States v. Dominguez, 

954 F.3d 1251 (9th Cir. 2020), which, as the defendant 

acknowledged, rejected the argument that attempted robbery 

under the Hobbs Act is not a “crime of violence” that triggers 

18 U.S.C. § 924(c) and its accompanying penalties. 
4 UNITED STATES V. HOLIDAY

The panel held that there is no basis for a holding of 

cumulative error requiring a new trial.

COUNSEL

Douglas C. Brown, San Diego, California, for DefendantAppellant.

Robert S. Brewer, Jr., United States Attorney; Daniel E. 

Zipp, Chief, Appellate Section, Criminal Division; David 

Chu, Assistant United States Attorney; United States 

Attorney’s Office, San Diego, California; for PlaintiffAppellee.

OPINION

M. SMITH, Circuit Judge:

Juan Marquis Holiday was tried and convicted for seven 

instances of armed robbery and three instances of attempted 

armed robbery. The district court sentenced him to a 

mandatory minimum term of eighty-five years’ 

imprisonment. Holiday appealed his conviction and 

sentence. On appeal, Holiday raises three alleged trial 

errors: (1) denial of his motion to suppress body camera 

footage of him taken during an unrelated police encounter; 

(2) denial of his motion in limine to exclude video evidence 

of his flight from police; and (3) denial of his motion to sever 

the offenses. In addition, Holiday argues that cumulative 

errors affected the fairness of his trial. Holiday also 

contends that the mandatory minimum term imposed on him 

violates the Eighth Amendment’s prohibition on cruel and 

unusual punishment. Finally, Holiday urges the court to 
UNITED STATES V. HOLIDAY 5

overturn a prior case that held that attempted Hobbs Act 

robbery is a “crime of violence.” We have jurisdiction 

pursuant to 28 U.S.C. § 1291, and we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In early 2017, Holiday robbed seven businesses and 

attempted to rob three others. He was charged with seven 

counts of obstruction of commerce by robbery, in violation 

of 18 U.S.C. § 1951, three counts of attempted obstruction 

of commerce by robbery, in violation of 18 U.S.C. § 1951, 

and ten counts of using a firearm during a crime of violence, 

in violation of 18 U.S.C. § 924(c). Each robbery or 

attempted robbery was caught on surveillance footage. The 

footage showed a suspect with a hooded sweatshirt cinched 

to hide his face. Each incident involved the use of a firearm. 

During five of them, the suspect fired the gun he was 

holding. During two of the robberies, the suspect pistolwhipped his victims.

On April 10, 2017, San Diego Police Officer Joshua 

Taisor witnessed a man in a dark blue sweater get into a 

parked car. That car then ran a stop sign and, when Taisor 

attempted to pull the car over, its driver led the police on a 

chase. The fleeing car eventually crashed, and four people 

bolted from the car and fled. One of those individuals was 

Holiday, who wore a blue hooded sweatshirt with black 

sleeves and the initials “SD” on the front, which the 

Government argued was identical to the sweatshirt the 

suspect was wearing in four of the robberies. A search of the 

vehicle also revealed a two-tone handgun that matched the 

description of the weapon used in one of the robberies.

In a search of Holiday’s home, the FBI recovered long 

dark shorts and a blue bandana that the government argued 

matched what the suspect was wearing in three of the 
6 UNITED STATES V. HOLIDAY

robberies. The FBI also found a black handgun with a silver 

ejection port that matched the gun used in five of the 

robberies. The Government introduced additional direct and 

circumstantial evidence at trial to link Holiday to the 

robberies, including DNA evidence matching Holiday’s 

profile from the scene of one robbery. The Government also 

adduced body camera footage from an unrelated police 

encounter at Holiday’s home. In the footage, Holiday was 

wearing blue Nike Cortez shoes with white trim, which 

matched the description of the shoes the suspect was wearing 

during one of the robberies.

The body camera footage was taken on February 7, 2017, 

after police received a report that a man was hitting a child 

in the backseat of a blue Jaguar. In a “contemporaneous 

line” of actions from the report of the incident, police ran the 

license plate and found it was registered to a person with the 

initials M.B., at 1703 Paseo Aurora Road. When the officers 

arrived at that address, one of them knocked on the front 

door, tried the handle, and found it was unlocked. The 

officer pushed the door open but remained standing on the 

threshold. Holiday and his wife were on their way to the 

door when the officer opened it; they told the officers that 

their children were at school and that they did not own a blue 

Jaguar. There is no indication that the officers saw a blue 

Jaguar at or near Holiday’s residence. The officers took 

Holiday’s name and left.

Holiday moved to suppress the bodycam footage of this 

exchange on the ground that it was collected in violation of 

the Fourth Amendment. The district court denied the 

suppression motion based on exigent circumstances. 

Holiday also moved to exclude video evidence showing the 

car chase after which he was apprehended on the grounds 

that it was inflammatory, more prejudicial than probative, 
UNITED STATES V. HOLIDAY 7

and reflected evidence of uncharged offenses. The district 

court denied the motion but gave a limiting instruction that 

the jury was prohibited from considering any potential 

uncharged crime when determining Holiday’s guilt for the 

charged crimes.

Holiday also moved to sever five of the robberies on 

somewhat unclear grounds, appearing to argue that five of 

the robberies were committed by two individuals together, 

and the other five were committed by one person alone. The 

district court denied the motion. Next, Holiday argued that 

conspiracy to commit robbery is not a crime of violence 

under the Hobbs Act. The district court held that the 

robberies were crimes of violence as a matter of law, noting 

that Holiday was not charged with conspiracy.

The jury convicted Holiday for his role in all ten 

robberies. At sentencing, the district court denied Holiday’s 

motion for a downward departure from the offenses’ 

mandatory minimum sentences, holding that the eighty-fiveyear mandatory minimum did not violate the Eighth 

Amendment. Holiday appealed.

On appeal, Holiday contends that the district court 

incorrectly denied his motion to suppress the body camera 

footage, requests that we “change [ ] current Ninth Circuit 

law” to hold that attempted Hobbs Act robbery is not a crime 

of violence for purposes of 18 U.S.C. § 924(c) and also 

claims that it was improper under Federal Rule of Evidence 

404(b) to admit the video evidence of the car chase after 

which police apprehended him. In addition, Holiday argues 

that the charges against him were improperly joined in a 

single indictment, that the district court should have granted 

his motion for a new trial based on cumulative errors, and 

that his mandatory minimum term of eighty-five years’ 

imprisonment violates the Eighth Amendment. 
8 UNITED STATES V. HOLIDAY

ANALYSIS

A.

We first consider whether the district court properly 

denied Holiday’s motion to suppress the body camera 

footage.

1.

The San Diego Police Department did not obtain a 

warrant to search Holiday’s home in connection with the 

report of child abuse in a blue Jaguar registered to Holiday’s 

address. “[S]earches and seizures inside a home without a 

warrant are presumptively unreasonable,” and therefore 

violate the Fourth Amendment, unless subject to an 

established exception. Kentucky v. King, 563 U.S. 452, 459 

(2011) (internal quotation marks omitted). The Government 

concedes that opening Holiday’s front door constituted a 

search, but it contends that the search was constitutional 

pursuant to the emergency exception to the warrant 

requirement.

Pursuant to the emergency exception, police need not 

obtain a search warrant to enter a dwelling if 

“(1) considering the totality of the circumstances, law 

enforcement had an objectively reasonable basis for 

concluding that there was an immediate need to protect 

others or themselves from serious harm; and (2) the search’s 

scope and manner were reasonable to meet the need.” 

United States v. Snipe, 515 F.3d 947, 952 (9th Cir. 2008). 

Domestic violence cases do not “create a per se exigent need 

for warrantless entry.” United States v. Brooks, 367 F.3d 

1128, 1136 (9th Cir. 2004). Instead, we have found the 

emergency exception to the warrant requirement satisfied 

where police have an objectively reasonable belief that the 
UNITED STATES V. HOLIDAY 9

victim is inside the home and in danger. See, e.g., United 

States v. Black, 482 F.3d 1035, 1039 (9th Cir. 2007) 

(affirming application of the exigent circumstances doctrine 

when the defendant “could have returned to the apartment 

after [the victim’s] 911 call, but before police arrived at the 

scene,” which would have allowed the defendant to “pull 

[the victim] back into the apartment”); United States v. 

Brooks, 367 F.3d 1128, 1135 (9th Cir. 2004).

In this case, the Government has not satisfied the second 

prong of the Snipe test. The officers had no reason to believe 

that the child victim was in the home at the address where 

the Jaguar was registered. In fact, they had reason to believe 

the child was not in the home, since the tip they received was 

that the child was in a blue Jaguar. The Government 

appears to adopt the district court’s finding that “there ‘was 

no indication that the [incident] in the Jaguar had ended’” 

when officers arrived at the residence. If the incident in the 

Jaguar had not ended, it was clearly unreasonable for the 

officers to have believed that the victim of the reported crime 

was inside Holiday’s residence. In order to show that “the 

search’s scope and manner were reasonable to meet the 

need,” as the Snipe test requires, 515 F.3d at 952, the 

Government must provide a logical and sound link between 

the information police have and the search they conduct. 

The Government has failed to do so here.

The Government cites several cases for the proposition 

that “the need to ensure a child’s welfare is an emergency 

that justifies a limited, warrantless search.” But in each case 

cited, the police had information that either suggested or 

confirmed that the child in need of assistance was inside the 

dwelling that was the subject of the warrantless search (or 

the child was with police and needed to be reunited with 

parents inside the dwelling). See, e.g., United States v. 
10 UNITED STATES V. HOLIDAY

Bradley, 321 F.3d 1212, 1214–15 (9th Cir. 2003) 

(warrantless entry was constitutional where nine-year-old’s 

mother told police that the child was home with no parent or 

guardian in the middle of the night); United States v. Brooks, 

367 F.3d 1128, 1136 (9th Cir. 2004) (warrantless entry into 

a hotel room was permissible where a 911 call reported 

abuse taking place inside the room); United States v. Taylor, 

624 F.3d 626, 632 (4th Cir. 2010) (warrantless entry was 

constitutional to reunite a lost four-year-old with the child’s 

parents).

The opposite is true here: rather than information that the 

child was inside the residence at 1703 Paseo Aurora, the 

police had information suggesting or confirming that the 

child in need of assistance was in a blue Jaguar. But instead 

of locating the blue Jaguar, the police went to the location 

where they knew or should have known the child was not 

present. The officers’ conduct does not fall within the scope

of the emergency exception to the warrant requirement.1

2.

According to the Federal Rules of Criminal Procedure, 

“[a]ny error . . . that does not affect substantial rights must 

be disregarded” on appeal. Fed. R. Crim. P. 52(a). Thus, 

when evidence in a case like this one is introduced that 

should not have been, the court conducts a harmless error 

analysis. United States v. Brobst, 558 F.3d 982, 997 (9th 

Cir. 2009). “[B]efore a federal constitutional error can be 

held harmless, the court must be able to declare a belief that 

it was harmless beyond a reasonable doubt,” in that it “did 

1 Nor was the warrantless search of Holiday’s home justified under 

the community caretaking exception. See Caniglia v. Strom, 593 U.S. 

______ (2021).
UNITED STATES V. HOLIDAY 11

not contribute to the verdict obtained.” Chapman v. 

California, 386 U.S. 18, 24 (1967). The Government bears 

the burden of proving that an error was harmless. Lustig, 

830 F.3d at 1086.

The Government used the body camera footage obtained 

from the illegal search to show that Holiday owned blue 

Nike Cortez sneakers with white trim—the shoes that the 

suspect was wearing in the January 5 robbery of the ARCO 

gas station. The footage was not used for any other purpose. 

Thus, at most, the footage could only have affected the 

verdict on the two counts associated with the ARCO 

robbery. However, there was other probative evidence 

linking Holiday to that particular robbery. Specifically, 

Holiday’s DNA was found on a black plastic bag outside the 

ARCO gas station soon after the surveillance footage 

showed the clerk handing the robber an identical black 

plastic bag. Holiday argues that the Government’s theory at 

trial rested on a common pattern among all the robberies. 

This is true, but it is irrelevant where the improperly 

admitted body camera footage merely bolstered already 

conclusive evidence that Holiday committed a particular 

count charged in the indictment. See United States v. 

Frederick, 78 F.3d 1370, 1381 (9th Cir. 1996). Because of 

the strength of the other evidence that Holiday committed 

the ARCO robbery, we hold that the error in admitting the 

body camera evidence was harmless.

B.

Holiday contends that the district court should have 

granted his motion in limine to exclude the video evidence 

of Holiday’s flight from police on April 10, 2017 pursuant 

to Federal Rule of Evidence 404(b). Rule 404(b) states:
12 UNITED STATES V. HOLIDAY

(1) Prohibited Uses. Evidence of any other 

crime, wrong, or act is not admissible to 

prove a person’s character in order to show 

that on a particular occasion the person acted 

in accordance with the character.

(2) Permitted Uses. This evidence may be 

admissible for another purpose, such as 

proving motive, opportunity, intent, 

preparation, plan, knowledge, identity, 

absence of mistake, or lack of accident.

First, Holiday provides no support for his argument that 

the car chase was within the scope of Rule 404(b). The 

Government did not use the video to argue that Holiday was 

the type of person who flees from police, or that he fled from 

police in the charged crimes. Instead, the Government used 

the video of the car chase “to explain how the Government 

obtained the two[-]tone handgun . . . (and to corroborate 

testimony that Holiday was sitting where the gun was 

found), and to show that Holiday was wearing the same blue 

hooded sweatshirt with black sleeves that was worn at the 

last four robberies.” The car chase video therefore was not 

subject to Rule 404(b)(1).

Even if the video would have been excluded under Rule 

404(b)(1) if the Government had used it to prove Holiday’s 

character, it was admissible under Rule 404(b)(2) for another 

purpose. Under our case law, “[w]hen the [G]overnment 

offers evidence of prior crimes or bad acts as part of its case 

in chief, ‘it has the burden of first establishing relevance of 

the evidence to prove a fact within one of the exceptions to 

the general exclusionary rule of Rule 404(b)[.]’” United 

States v. Sims, 617 F.2d 1371, 1378 (9th Cir. 1980) (quoting 

United States v. Hernandez-Miranda, 601 F.2d 1104, 1108 
UNITED STATES V. HOLIDAY 13

(9th Cir. 1979)). Second, the Government must show “that 

the proper relevant evidence is more probative than it is 

prejudicial to the defendant.” Id. (quoting HernandezMiranda, 601 F.2d at 1108). The required probative versus 

prejudicial balancing is reviewed for abuse of discretion. Id.

The Government used the video to prove Holiday’s 

identity as the person who committed several robberies 

while wearing the same sweatshirt he wore in the video, and, 

in one robbery, using the same gun that was found near 

where he was sitting in the fleeing car. This is permissible 

under Rule 404(b)(2). With respect to the probative versus 

prejudicial balancing test, the district court did not abuse its 

discretion. Although the video showed “a vehicle police 

chase, SWAT officers in full gear, dogs, air surveillance[,] 

and sirens,” none of these features is particularly prejudicial, 

as all are ordinary markers of a police chase. Officer Taisor 

testified that the car in which Holiday was riding fled from 

him when he attempted to conduct a traffic stop, and Holiday 

did not object to this testimony. Therefore, even assuming 

arguendo that the video was within the scope of Rule 

404(b)(1) if used to prove Holiday’s character, its admission 

was not an abuse of discretion because it was relevant and 

not more prejudicial than probative.

C.

Federal Rule of Criminal Procedure 8(a) permits joinder 

of multiple offenses in a single indictment when the offenses 

“are of the same or similar character, or are based on the 

same act or transaction, or are connected with or constitute 

parts of a common scheme or plan.” Holiday admits that 

“[t]he counts are of the same or similar character,” but seems 

to argue that joinder is only proper where the counts satisfy 

all three criteria in Rule 8(a).
14 UNITED STATES V. HOLIDAY

Holiday’s argument is belied by the plain text of the rule, 

which uses the disjunctive “or” to signal that joinder is 

proper where just one criterion is satisfied. The district court 

did not err by denying Holiday’s severance motion.

D.

The Eighth Amendment prohibits cruel and unusual 

punishments. “[T]he ‘Eighth Amendment does not require 

strict proportionality between crime and sentence. Rather, it 

forbids only extreme sentences that are “grossly 

disproportionate” to the crime.’” United States v. Harris, 

154 F.3d 1082, 1084 (9th Cir. 1998) (quoting Harmelin v. 

Michigan, 501 U.S. 957, 1001 (1991) (Kennedy, J., 

concurring in part and concurring in the judgment)). The 

threshold question is whether a “comparison of the crime 

committed and the sentence imposed leads to an inference of 

gross disproportionality.” Id. (quoting Harmelin, 501 U.S. 

at 1005 (Kennedy, J., concurring in part and concurring in 

the judgment)).

In Harris, the defendant was convicted of five counts of 

interference with interstate commerce by robbery in 

violation of 18 U.S.C. § 1951(a), and five counts of use of a 

firearm in a crime of violence in violation of 18 U.S.C. 

§ 924(c). Id. at 1083. The district court sentenced Harris to 

a term of ninety-five years’ imprisonment, pursuant to the 

mandatory minimums set forth in 18 U.S.C. § 924(c). Id. 

We held that sentence did not violate the Eighth Amendment 

for three reasons: (1) “[a]rmed robberies are extremely 

dangerous crimes”; (2) “[t]he robberies at issue in [that] case 

were undeniably violent”; and (3) Congress mandated 

Harris’s sentence in an otherwise valid statute, and “[a] 

sentence which is within the limits set by a valid statute may 

not be overturned on appeal as cruel and unusual.” Id.

at 1084 (quoting United States v. Klein, 860 F.2d 1489, 1495 
UNITED STATES V. HOLIDAY 15

(9th Cir. 1988), overruled on other grounds by United States 

v. Nordby, 225 F.3d 1053 (9th Cir. 2000)).

In Harris, the defendant was convicted for his role in five 

robberies and sentenced to ninety-five years’ imprisonment; 

here, Holiday was convicted for his role in ten robberies and 

sentenced to eighty-five years’ imprisonment. Otherwise, 

the cases do not differ meaningfully. Harris therefore 

compels the conclusion that Holiday’s sentence does not 

violate the Eighth Amendment. See Miller v. Gammie, 

335 F.3d 889, 893 (9th Cir. 2003).

E.

Holiday argues that attempted robbery under the Hobbs 

Act is not a “crime of violence” that triggers 18 U.S.C. 

§ 924(c) and its accompanying penalties. However, citing 

United States v. Dominguez, 954 F.3d 1251 (9th Cir. 2020), 

Holiday acknowledges that a ruling in his favor would be 

contrary to our court’s precedent. Because we are not at 

liberty to overrule the opinion of a prior three-judge panel 

absent intervening and clearly irreconcilable Supreme Court 

authority, we affirm the district court on this ground. See 

Miller, 335 F.3d at 893.

F.

Finally, Holiday argues that the district court should 

have granted his motion for a new trial based on cumulative 

error. “[E]ven if no single error were prejudicial, where 

there are several substantial errors, ‘their cumulative effect 

may nevertheless be so prejudicial as to require reversal.’” 

Killian v. Poole, 282 F.3d 1204, 1211 (9th Cir. 2002) 

(quoting United States v. de Cruz, 82 F.3d 856, 868 (9th Cir. 

1996)). However, “[o]ne error is not cumulative error.” 

United States v. Sager, 227 F.3d 1138, 1149 (9th Cir. 2000). 
16 UNITED STATES V. HOLIDAY

Because we find only that admission of the body camera 

footage was erroneous, there is no basis for a holding of 

cumulative error requiring a new trial.

CONCLUSION

The police violated the Fourth Amendment when they 

opened the door to Holiday’s residence without a warrant on 

February 7, 2017, and the fruit of that search should not have 

been introduced at trial. However, given the strength of the 

other evidence that Holiday committed the ARCO robbery, 

the district court’s error in admitting the body camera 

evidence was harmless. We reject the remainder of 

Holiday’s challenges to his conviction and sentence as 

meritless.

AFFIRMED.