Estrada-Martinez

MEMORANDUM *

Francisco Estrada-Martinez (“Estrada”) was convicted of importation of marijuana in violation of 21 U.S.C. §§ 952 and 960 and was sentenced to 60 months in prison. He appeals his conviction and his sentence. We vacate the sentence and remand.

I

The parties are familiar with the facts, and we need not discuss them.

Customs Inspector (“Cl”) Gary Phillips testified on cross-examination: “Prior to the March 12th, 1999 seizure and subsequent arrest of Mr. Estrada, he indicated he had brought through three or four other trailers for Mr. Acosta which he believed may have been loaded. That’s a fair assessment.” Estrada’s counsel made a continuing objection to evidence regarding Estrada’s statements about earlier border crossings.

Estrada’s counsel moved for a mistrial, claiming that Cl Phillips’ responses violated Federal Rule of Evidence 404(b), which provides: “Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.” The court denied the mistrial motion, and Estrada appeals.

We review for an abuse of discretion. United States v. Sarkisian, 197 F.3d 966, 981 (9th Cir.1999), cert,…