United States v. Delgado

DENNIS, Circuit Judge, joined by WIENER, Circuit Judge,

dissenting.

In failing to reverse Maria Delgado’s conspiracy conviction, the majority opinion commits two major errors: First, it perpetuates the erroneous “no evidence” or “devoid of evidence” standard of review for forfeited due process sufficiency-of-the-evidence claims, thus missing this en banc opportunity to join our sister circuits as a majority in recognizing that after Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the Due Process Clause, United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993), and Federal Rule of Criminal Procedure 52(b), require appellate courts to review plain insufficiency-of-the-evidenee errors even if they have been forfeited on appeal. Second, although the majority opinion ties all future oral argument panels to the erroneous “devoid of evidence” standard, it purports to charitably review Delgado’s conspiracy conviction under the correct Jackson v. Virginia standard, but misapplies the standard here and reaches the wrong result. Ironically, the en banc majority confuses its own suspicion, speculation, and fiction for real evidence and fails to recognize that the evidence of a true conspiratorial agreement between Delgado and a bona fide co-conspirator is so lacking that Delgado’s conspiracy conviction should be reversed under either the correct Jackson v. Virginia standard or the obsolete and erroneous “no evidence” standard. Therefore, I respectfully dissent.1

This opinion discusses the conspiracy charge in this case and the evidence adduced at trial by the government; the fundamental due process principles to which all of our decisions must adhere, and the correct Jackson v. Virginia standard for reviewing Delgado’s forfeited insufficiency-of-evidence claim; the reasons that the majority’s perpetuation of the “no evidence” or “devoid of evidence” standard is *346a grievous error that will harmfully affect the work of our oral argument panels; and finally, the reasons that the evidence here is clearly insufficient under Jackson v. Virginia to prove an agreement between Delgado and any other bona fide conspirator to possess drugs with the further intent to distribute them.

1. Background

A. Conspiracy charge

The first count of the indictment charged Delgado with “knowingly and intentionally conspiring] and agreeing] with other person or persons ... to knowingly and intentionally possess with intent to distribute a controlled substance,” in violation of 21 U.S.C. §§ 841(a)(1) and 846. (emphasis added).2 Section 846 criminalizes, among other things, “conspiracy] to commit any offense defined in this sub-chapter”; and § 841(a)(1) proscribes several acts: “[I]t shall be unlawful for any person knowingly or intentionally ... to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance .... ” Delgado was charged with conspiring to “possess with intent to distribute a controlled substance.” Therefore, the Government had to prove beyond a reasonable doubt that Delgado entered into an agreement with another person not just to possess a controlled substance, but to possess the substance “with the intent to distribute” it. This agreement is referred to herein as “a drug distribution agreement.”

B. Trial evidence

The Government’s case rested largely on the testimony of a paid Government informer, Bartolomé Vasquez. Vasquez testified that he had known and done legitimate business with Delgado for almost four years, during which time he worked for a produce broker and shipper in Laredo, Texas, and assembled shipments of produce from Mexico to be hauled by Delgado’s company, TJ Trucking. Vasquez testified that on September 8, 2006, Delgado abruptly offered to pay him $10,000 to commingle bundles of marijuana in a TJ Trucking shipment of broccoli bound for New York, and to arrange for the marijuana to be delivered to a buyer in North Carolina. Vasquez testified that he initially refused and reported the incident to Immigration and Customs Enforcement (ICE) officers in Laredo. He knew they might reward such information because ICE had paid him for such information on two prior occasions. Indeed, Vasquez was handsomely rewarded: he received $7,500 for his information and efforts to incriminate Delgado.

Vasquez testified that at the instruction of ICE officers, he contacted Delgado, withdrew his initial refusal, and purported to agree to make arrangements for the concealed drug shipment. Secretly working with ICE officers, Vasquez recorded several of his phone conversations with Delgado, which were in Spanish and appeared to be nothing more than discussions about the arrangements for a regular produce shipment. However, according to Vasquez, the conversations were in code and were really about the proposed marijuana shipment. Vasquez and the ICE officers planned to have Delgado send the truck containing the marijuana to rendezvous with Vasquez on September 11, 2006, at a Government-controlled warehouse in *347Laredo, where the officers would make arrests and seize the drugs. However, on September 11, Delgado called Vasquez and said that the shipment was cancelled because the buyer in North Carolina had been arrested. Vasquez relayed this information to the ICE officers, and told them that the rig with the marijuana was parked at Delgado’s house. According to Vasquez, Delgado had said that she planned to try to return the marijuana, but did not say how, where, or to whom.

Later that day, ICE officers went to Delgado’s house near Weslaco, Texas. They could see the truck described by Vasquez parked inside the locked fence around Delgado’s property. After the officers alerted Delgado to their presence, she came out and met them at the gate and agreed to allow them to search her home and the truck. She voluntarily opened a closet and safe in her house where the officers found three handguns and a shotgun; however, she told the officers that she did not have a key to the truck, that only the driver had the key, and that she did not have his phone number. With Delgado’s permission, an officer used a coat hanger to unlock the cab door of the truck and discovered 280 kilograms of marijuana in the truck’s sleeper compartment. Delgado denied knowing that the drugs were in the truck and told the officers that the driver, who had parked and locked the truck, must have left the marijuana inside. In a room of Delgado’s house, another officer found a trash bag with a number of aluminum wrappers containing what the officer believed was marijuana residue. Delgado told the officers that she thought the wrappers had held potting soil and that her house and garden worker, Peter (or Pedro), had brought them in.

Albert Aguilar, who lived in Weslaco near Delgado’s house and had worked as a driver for TJ Trucking for some ten months before the ICE officers seized the rig, testified that he was the only driver operating the truck during that period. He denied having any knowledge of contraband or drug activity involving the truck. He testified that he drove loads of produce for Delgado and TJ Trucking almost weekly from Laredo to points throughout the United States. He said that between trips he always parked the truck at Delgado’s house, locked the cab, and left the key with Delgado. He said he knew of only one key to the truck.

Regarding the week before the officers’ September 11, 2006, discovery of marijuana in the truck, Aguilar testified that he picked up a load of pork in Omaha, Nebraska, and headed back to Texas. On September 7, he arrived in Weslaco, parked the truck at Delgado’s house, locked the cab, left the key with Delgado, and went home. On September 8, he picked up the truck at Delgado’s house and drove the load of pork to Hidalgo, Texas, where the pork was unloaded. Aguilar then went to Edinburg, Texas, to drop off the bill of lading; and from there, he took the truck to a mechanic’s shop in Donna, Texas, where he left the truck and the key. He testified that at that time there was no marijuana in the vehicle. There was no evidence introduced at trial tracing the truck’s movements or its contents between the time Aguilar left the truck in Donna, Texas, on September 8, and September 11, when the marijuana was discovered in it. Nor was there any evidence as to the number or identity of the other persons who had access to the truck during that interval. On September 13, Delgado called Aguilar and told him about the officers’ search of the truck two days before, assured him the truck was now “clean,” and asked him to pick up a new load in Laredo. Delgado met Aguilar with the truck at a tire shop where they put air into *348the tires, and he drove the truck to Laredo, where it was seized by ICE officers.

The Government did not introduce any evidence that tied Delgado to the marijuana found in the truck. A chemist’s test, introduced by stipulation, determined that the bundles found in the truck were marijuana; however, no such test was introduced to identify the residue in the aluminum wrappers found in Delgado’s house or to link the wrappers to the marijuana found in the truck. Although the officers seized Delgado’s cell phone, computer, a camera, and her business, financial, and banking records, the Government found no evidence of illegal drug activity among those items. And although officers testified that they had located Peter, Delgado’s house and garden worker, and one officer reported seeing Delgado’s ex-husband at her house on a later date, neither of these potential witnesses testified at trial. The Government introduced no testimony regarding whether other persons were involved with Delgado in the TJ Trucking business, whether other members of her family resided in her house, or who was the registered owner of the truck. There was also no evidence of Delgado’s fingerprints on the aluminum wrappers, the bundles of marijuana, or the sleeper cab of the truck.

The Government introduced no evidence identifying the supplier of the marijuana. Indeed, the Government offered no evidence whatsoever regarding the origin of the marijuana found in the truck. Neither did the Government introduce any evidence identifying the prospective, North Carolina buyer — despite the fact that Vasquez testified that the person had been arrested in McAllen, Texas, in the Rio Grande Valley. Nor was there evidence of any discussion between Delgado and the supplier or the putative buyer, or of the nature or extent of Delgado’s relationship, if any, with either of them.

II. Standard of review for sufficiency of the evidence

At the close of the Government’s case, Delgado moved for acquittal on the grounds that the evidence did not sufficiently prove that she knowingly possessed the marijuana found in the truck on her property. In response, the district court said, “The Court notes your motion, but it’s denied at this time. And the Court finds there’s some evidence, substantial evidence, or some evidence to support each of the counts alleged in the Indictment.” That is, the district court considered whether the evidence was sufficient to prove the conspiracy count; and although the court seemingly applied the wrong standard (“some evidence” as opposed to “sufficient evidence”), it held that the evidence was not insufficient. It was proper for the district court to consider this issue sua sponte, according to Rule 29 of the Federal Rules of Criminal Procedure, which provides:

After the government closes its evidence or after the close of all the evidence, the court on the defendant’s motion must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction. The court may on its own consider whether the evidence is insufficient to sustain a conviction.

Fed.R.Crim.P. 29 (emphasis added). Although Delgado did not object to the court’s ruling that the evidence was sufficient, she did not need to take an exception to the court’s ruling to preserve the issue. See Fed. R. Crim P. 51(a) (“Exceptions to rulings or orders of the court are unnecessary.”).3 Nonetheless, Delgado did *349not argue that the evidence was insufficient in her appellate briefs to this court and thus, she forfeited the issue on appeal. See Olano, 507 U.S. at 733, 113 S.Ct. 1770 (“forfeiture is the failure to make the timely assertion of a right”). Therefore, we must first decide what standard governs our review of a forfeited insufficiency-of-the-evidence claim.

A Due process principles and the correct standard for review of a forfeited insufficiency-of-evidence claim

The correct standard for appellate review of a forfeited insufficiency-of-the-evidence claim is understood within the context of fundamental due process principles. The Supreme Court has always considered proof beyond a reasonable doubt to be of paramount importance to our notions of liberty, and thus, to the due process guaranteed by the Fifth and Fourteenth Amendments. In my view, the Court has consistently held that appellate courts must review the evidence supporting a criminal conviction to ensure that the evidence is sufficient for due process purposes, even if the defendant has forfeited the issue by not properly raising it in the district court or on appeal. Although the Supreme Court in its earlier cases allowed lower courts to review for “no evidence,” in 1979, in Jackson v. Virginia, the Court breathed life into appellate review of the evidence supporting a conviction by requiring that the conviction be supported by sufficient proof of guilt beyond a reasonable doubt. Accordingly, after Jackson v. Virginia, courts of appeals must apply the sufficiency standard rather than the “no evidence” or “any evidence” standard.

“[T]he Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). This bedrock constitutional principle is fundamental to the rule of law. “The standard of proof beyond a reasonable doubt, said the Court, ‘plays a vital role in the American scheme of criminal procedure,’ because it operates to give ‘concrete substance’ to the presumption of innocence to ensure against unjust convictions, and to reduce the risk of factual error in a criminal proceeding. ... [T]he standard symbolizes the significance that our society attaches to the criminal sanction and thus to liberty itself.” Jackson, 443 U.S. at 315, 99 S.Ct. 2781 (quoting Winship, 397 U.S. at 363, 90 S.Ct. 1068) (citing Winship, 397 U.S. at 372, 90 S.Ct. 1068 (Harlan, J., concurring)). The “virtually unanimous adherence to the reasonable-doubt standard in common-law jurisdictions ... ‘reflect[s] a profound judgment about the way in which law should be enforced and justice administered.’ ” Winship, 397 U.S. at 361-62, 90 S.Ct. 1068 (quoting Duncan v. Louisiana, 391 U.S. 145, 155, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968)); see also id. at 372, 90 S.Ct. 1068 (Harlan, J., concurring) (“I view the requirement of proof *350beyond a reasonable doubt in a criminal case as bottomed on a fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free.”).

In Jackson v. Virginia, the Supreme Court held that “[a]fter Winship the critical inquiry on review of the sufficiency of the evidence to support a criminal conviction must be not simply to determine whether the jury was properly instructed, but to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt.” Id. at 318-19, 99 S.Ct. 2781 (emphases added). That is, the Court made clear that “[t]he Winship doctrine requires more than simply a trial ritual.” Id. at 316-17, 99 S.Ct. 2781. “A doctrine establishing so fundamental a substantive constitutional standard must also require that the factfinder will rationally apply that standard to the facts in evidence.” Id. As the Court cautioned, “a properly instructed jury may occasionally convict even when it can be said that no rational trier of fact could find guilt beyond a reasonable doubt.” Id. However, “[ujnder Winship, which established proof beyond a reasonable doubt as an essential of Fourteenth Amendment due process, it follows that when such a conviction occurs ..., it cannot constitutionally stand.” Id. at 317-18, 99 S.Ct. 2781 (emphasis added); see also id. at 316, 99 S.Ct. 2781 (“Winship presupposes as an essential of the due process guaranteed by the Fourteenth [and Fifth] Amendments] that no person shall be made to suffer the onus of a criminal conviction except upon sufficient proof — defined as evidence necessary to convince a trier of fact beyond a reasonable doubt of the existence of every element of the offense.” (emphasis added)). In reaching this conclusion, the Court rejected an opposing rule that a guilty verdict should be upheld unless there was “no evidence” of guilt, because such a rule “is simply inadequate to protect against misapplications of the constitutional standard of reasonable doubt.” Id. at 312-13, 320, 99 S.Ct. 2781.

Thus, it is the duty of appellate courts to “protect against misapplications of the constitutional standard of reasonable doubt,” id. at 320, 99 S.Ct. 2781, and to enforce the constitutional guarantee that “no person shall be made to suffer the onus of a criminal conviction except upon sufficient proof,” id. at 316, 99 S.Ct. 2781 (emphases added). “Despite the deference that characterizes appellate review of jury verdicts, juries do not have carte blanche. The appellate function, properly understood, requires the reviewing court to take a hard look at the record and to reject those evidentiary interpretations and illations that are unreasonable, insupportable, or overly speculative. This function is especially important in criminal cases, given the prosecution’s obligation to prove every element of an offense beyond a reasonable doubt.” United States v. Spinney, 65 F.3d 231, 234 (1st Cir.1995); see also United States v. Polk, 56 F.3d 613, 630 (5th Cir. 1995) (“[C]ourts of appeal must not completely abdicate responsibility for reviewing jury verdicts.” (internal quotation marks omitted)). See generally Jon O. Newman, Beyond “Reasonable Doubt”, 68 N.Y.U. L.Rev. 979, 993-97 (1993) (issuing an “urgent plea” to the courts of appeal to “take seriously our obligation” to reverse convictions based on insufficient evidence).

Because the requirement of sufficient proof of guilt beyond a reasonable doubt is fundamental to our notions of liberty and vital to the rule of law, it must be carefully guarded — even if not raised by the defendant. The Supreme Court held over a century ago that even when “th[e] question [of the sufficiency of the evidence] was not properly raised, yet if a plain error was committed in a matter so absolutely vital *351to defendants, we feel ourselves at liberty to correct it.” Wiborg v. United States, 163 U.S. 632, 658, 16 S.Ct. 1127, 41 L.Ed. 289 (1896) (emphasis added). The Court later reaffirmed this principle and further explained its importance:

While no motion or request was made that the jury be instructed to find for defendant, ... yet Wiborg v. United States, 163 U.S. 632, 658, 16 Sup.Ct. Rep. 1127, 1197, 41 L. ed. [L.Ed.] 290 [289], 298, justifies us in examining the question in case a plain error has been committed in a matter so vital to the defendant.
.... No matter how severe may be the condemnation which is due to the conduct of a party charged with a criminal offense, it is the imperative duty of a court to see that all the elements of his crime are proved, or at least that testimony is offered which justifies a jury in finding those elements. Only in the exact administration of the law will justice in the long run be done, and the confidence of the public in such administration be maintained.

Clyatt v. United States, 197 U.S. 207, 221-22, 25 S.Ct. 429,49 L.Ed. 726 (1905).

In keeping with this understanding of due process — that “it is the imperative duty of a court to see that all the elements of [the] crime are proved,” id., and that a conviction based on insufficient evidence is a plain error that must be corrected, Wiborg, 163 U.S. at 658, 16 S.Ct. 1127 — the Supreme Court has instructed the federal appellate courts to consider the sufficiency of the evidence even when the issue was not raised in the district court, or was not raised on appeal. See Hemphill v. United States, 312 U.S. 657, 657, 61 S.Ct. 729, 85 L.Ed. 1106 (1941) (per curiam) (remanding to the Ninth Circuit “with directions to consider the sufficiency of the evidence to support the verdict” even though the issue had not been raised below); United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 80 L.Ed. 555 (1936) (“In exceptional circumstances, especially in criminal cases, appellate courts, in the public interest, may, of their own motion, notice errors to which no exception has been taken, if the errors are obvious, or if they otherwise seriously affect the fairness, integrity or public reputation of judicial proceedings.”) (citing Brasfield v. United States, 272 U.S. 448, 450, 47 S.Ct. 135, 71 L.Ed. 345 (1926)).4

These decisions established the following principles: Ensuring that sufficient evidence supports criminal convictions is “a matter so absolutely vital to defendants” and to “the confidence of the public” in “the exact administration of the law” that the federal appellate courts have a duty to consider the sufficiency of the evidence even if the defendant has not raised it; and that a conviction supported by insufficient evidence is plain error that must be reversed. These principles were later codified in Rule 52(b) of the Federal Rules of Criminal Procedure, which provides: “A plain error that affects substantial rights may be considered even though it was not brought to the court’s attention.” The original advisory committee notes to Rule 52(b) state: “This rule is a restatement of existing law, Wiborg v. United States, [163 U.S. 632, 658, 16 S.Ct. 1127, 41 L.Ed. 289 (1896)]; Hemphill v. United States, [112 F.2d 505 (9th Cir.1940), rev’d, 312 U.S. *352657, 61 S.Ct. 729, 85 L.Ed. 1106 (1941)].” Fed.R.Crim.P. 52 advisory committee’s notes (1944); see also United States v. Young, 470 U.S. 1, 15 n. 12, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985) (“The Advisory Committee’s Notes indicate that [Rule 52(b)] restated existing law as set forth by this Court in Wiborg.... ”).5 The Court later reaffirmed that Rule 52(b) applies equally to plain errors that are not raised on appeal. Silber v. United States, 370 U.S. 717, 717-18, 82 S.Ct. 1287, 8 L.Ed.2d 798 (1962). And recently, in United States v. Olmo, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993), the Supreme Court reaffirmed that Rule 52(b) “was intended as ‘a restatement of existing law.’ ” Id. at 731, 113 S.Ct. 1770 (quoting Fed.R.Crim.P. 52 advisory committee’s notes). Indeed, the Olano Court specifically cited Wiborg as an example of a case in which “[t]he court of appeals should no doubt correct a plain forfeited error.” Id. at 736, 113 S.Ct. 1770 (citing Wiborg, 163 U.S. 632, 16 S.Ct. 1127).

Following the clear mandate of Wiborg and Clyatt to guard against convictions based on insufficient proof of guilt, even if forfeited by the defendant, two panels of this court held that insufficiency-of-the-evidence is a plain error that must be corrected6 (although later panels have unfortunately failed to follow these decisions); and several of our sister circuits have agreed that convicting a defendant based on insufficient evidence is a plain error under Rule 52(b). See, e.g., United States v. Santistevan, 39 F.3d 250, 256-57 (10th Cir.1994) (“[W]e believe the prosecution’s failure to prove an essential element of the crimes charged beyond a reasonable doubt in this case offends our most fundamental sense of due process. See In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). Accordingly, it is appropriate for us to exercise our power to raise the sufficiency of the evidence sua sponte as plain error.”); United States v. Bowie, 892 F.2d 1494, 1496-97 (10th Cir. 1990) (“When considering the sufficiency of the evidence to support the verdict, we have stated the plain error standard in different words, but the standard actually applied is essentially the same as if there had been a timely motion for acquittal.” *353(citations omitted)); United States v. Zolicoffer, 869 F.2d 771, 774 (3d Cir.1989) (“[T]he failure to prove one of the essential elements of a crime is the type of fundamental error which may be noticed by an appellate court notwithstanding the defendant’s failure to raise it in the district court.”), reaffirmed in United States v. Gaydos, 108 F.3d 505, 509 (3d Cir.1997) (citing Olano, 507 U.S. at 732, 113 S.Ct. 1770); United States v. Golomb, 811 F.2d 787, 793 (2d Cir.1987) (“[T]he government’s failure to prove an element of the offense is plain error.”); United States v. McIntyre, 467 F.2d 274, 276 n. 1 (8th Cir.1972) (“[T]he plain error doctrine, Fed. R.Crim.P. 52(b), would undoubtedly apply in any case where evidence is lacking to support a conviction since under those circumstances it would clearly affect the substantial rights of the defendants.” (citations omitted)); Strickland v. United States, 339 F.2d 866, 868 (10th Cir.1965) (“[T]he Government failed to prove an essential element of the offense. This error is a fundamental one which may be noticed by the court, despite the fact that appellant failed to raise the issue properly in the trial court. Rule 52(b), Fed. R.Crim. P____ [W]here conviction was had without proof of one of the elements, it is necessary that the appellate court take notice although not properly raised at trial.”).

B. The “devoid of evidence/manifest miscarriage of justice” standard

Nonetheless, the majority today unfortunately perpetuates an erroneous “devoid of evidence/manifest miscarriage of justice” standard that this court and a number of the other circuits have applied to forfeited insufficieney-of-the-evidence claims. Majority Op. 330-31.7 This standard is seriously flawed because it: (1) undermines the fundamental due process guarantee *354that “no person” shall be convicted except upon sufficient proof of guilt beyond a reasonable doubt; (2) is obsolete after Jackson and mistakenly relies on cases decided during the Supreme Court’s preJackson, “no evidence” era; (3) is incompatible with the Supreme Court’s opinions clarifying review under Federal Rule of Criminal Procedure 52(b); and (4) does not promote, but in fact offends important judicial policies. Accordingly, six of the other courts of appeals have not adopted this unconstitutional standard, and several prominent scholars have agreed that there should be no difference in the standard of review of the sufficiency of the evidence whether or not the defendant properly raised it.

1. Undermines due process protection against criminal conviction without sufficient proof of guilt beyond a reasonable doubt

The “devoid of evidence/manifest miscarriage of justice” standard undermines the fundamental due process protection against criminal conviction without evidence sufficient to prove guilt beyond a reasonable doubt.

In Jackson v. Virginia, the Court held that “an essential of the due process guaranteed by the Fourteenth Amendment that no person shall be made to suffer the onus of a criminal conviction except upon sufficient proof— defined as evidence necessary to convince a trier of fact beyond a reasonable doubt of the existence of every element of the offense.” 443 U.S. at 316, 99 S.Ct. 2781 (emphases added); see also id. at 317-18, 99 S.Ct. 2781 (“Under Win-ship, which established proof beyond a reasonable doubt as an essential of Fourteenth Amendment due process, it follows that when such a conviction occurs ..., it cannot constitutionally stand.” (emphasis added)). The Court expressly rejected a “ ‘no evidence’ rule” akin to the majority’s “devoid of evidence” standard — that a conviction should be upheld unless the record revealed “no evidence” of guilt — because such a rule “is simply inadequate to protect against misapplications of the constitutional standard of reasonable doubt.” Id. at 320, 99 S.Ct. 2781.

“[T]he prosecution’s failure to prove an essential element of the crime[] charged beyond a reasonable doubt ... offends our most fundamental sense of due process.” Santistevan, 39 F.3d at 256-57 (citing Winship, 397 U.S. at 364, 90 S.Ct. 1068). That is why it is our “imperative duty” to ensure that “all the elements of [the] crime are proved.” Clyatt, 197 U.S. at 222, 25 S.Ct. 429. “Only in the exact administration of the law will justice in the long run be done, and the confidence of the public in such administration be maintained.” Id. Application of the “devoid of evidence/manifest miscarriage of justice” standard will result in criminal convictions based on insufficient proof of guilt being upheld; and thus, it endorses an inexact administration of the law, which demands sufficient proof. Therefore, justice will not be done by applying a “devoid of evidence” standard.

A Is obsolete after Jackson and mistakenly relies on cases decided during the Supreme Court’s pre-Jackson, “no evidence” era

The genesis of the “devoid of evidence/manifest miscarriage of justice” rule helps to explain why it is inconsistent with Jackson v. Virginia’s holding that due process demands sufficient proof of guilt beyond a reasonable doubt. Prior to Jackson, “the only constitutional ruling on sufficiency of evidence in a criminal case had been the unremarkable pronouncement in ... Thompson v. City of Louisville, [362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654 *355(1960),] that due process was denied when there was no evidence whatsoever of a required element of a criminal offense.” Newman, 68 N.Y.U. L.Rev. at 986-87 (footnote omitted). Under the Thompson “no evidence” standard, due process only-required that a conviction was supported by any evidence of guilt, and thus, a conviction violated due process only when there was no evidence to support it, i.e., when the record was devoid of evidence of guilt. See Jackson, 443 U.S. at 312, 99 S.Ct. 2781 (“Applying the ‘no evidence’ criterion of Thompson ... the district court found the record devoid of evidence” of an element of the offense; the Fourth Circuit “applied] the same ‘no evidence’ criterion of Thompson ” and reversed the district court because it “was of the view that some evidence” of the element existed.). The same rule existed before Thompson as well. See Thompson, 362 U.S. at 206 n. 13, 80 S.Ct. 624 (collecting cases).

In 1979, in Jackson v. Virginia, the Court reassessed the standard for reviewing the evidence due process. See 443 U.S. at 312-13, 99 S.Ct. 2781 (“We granted certiorari to consider the petitioner’s claim that under In re Winship, a [reviewing] court must consider not whether there was any evidence to support a state-court conviction, but whether there was sufficient evidence to justify a rational trier of the facts to find guilt beyond a reasonable doubt.” (emphasis in original) (citation omitted)). The Court held that it was “readily apparent” that “the Thompson ‘no evidence’ rule is simply inadequate to protect against misapplications of the constitutional standard of reasonable doubt.” Id. at 320, 99 S.Ct. 2781. Therefore, the Court adopted the now-familiar “sufficiency of the evidence” formulation. Id. at 318, 99 S.Ct. 2781.

It was during the “no evidence” era before Jackson, however, that this court first said that it would review forfeited claims of insufficient evidence to determine if “the record is wholly devoid of evidence pointing to guilt and that therefore justice has miscarried.” E.g., Molina v. United States, 162 F.2d 198, 198 (5th Cir.1947); see also Ansley v. United States, 135 F.2d 207, 208 (5th Cir.1943) (“It is true that the question may and should be raised by the court of its own motion, if necessary to prevent a miscarriage of justice.... ” (no citation)).8 The Molina court cited Marco v. United States, 26 F.2d 315 (9th Cir. 1928), for this proposition. There, the Ninth Circuit likewise stated, without supporting authority, that when there was no objection to the sufficiency of the evidence in the district court, the “[appellate] courts will only look into the record far enough to see that there has been no miscarriage of *356justice, or that there is some testimony tending to support the verdict.” 26 F.2d at 316.

The “devoid of evidence” standard in Molina, and the “some testimony tending to support the verdict” standard in Marco, were merely expressions of what the Supreme Court, at that time, had held was required by due process to support a conviction: “any” evidence to sustain the verdict. See Jackson, 443 U.S. at 312-13, 99 S.Ct. 2781. Thus, a proper understanding of the “devoid of evidence” standard in Molina is that in 1947, a forfeited claim of insufficient evidence was reviewed to determine if “the record [wa]s wholly devoid of evidence pointing to guilt,” in which case, the conviction violated due process, and was “a miscarriage of justice.” Molina, 162 F.2d at 198. Conversely, if the record contained “some testimony tending to support the verdict,” Marco, 26 F.2d at 316, the conviction did not violate due process, and thus, it was not a miscarriage of justice.

But, of course, Jackson v. Virginia re-calibrated what evidence due process demanded to sustain a conviction. No longer is “any” evidence acceptable, but instead, evidence sufficient to support a finding of guilt beyond a reasonable doubt is required. Therefore, the “devoid of evidence/manifest miscarriage of justice” standard, which is grounded in the outmoded understanding of due process in which any evidence tending to support the guilty verdict is enough to uphold the verdict, does not comport with due process as it is understood following Jackson v. Virginia.9

3. Conflicts with the Supreme Court’s recent opinions clarifying review under Federal Rule of Criminal Procedure 52(b)

The “devoid of evidence/manifest miscarriage of justice” standard also conflicts with the Supreme Court’s recent opinions clarifying review under Rule 52(b) of the Federal Rules of Criminal Procedure.

In Olano, the Court clarified that Rule 52(b) applies when (1) there is an error, (2) that is plain, and (3) that affects the defendant’s substantial rights. 507 U.S. at 732, 113 S.Ct. 1770; see also Johnson v. United States, 520 U.S. 461, 467, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997). Lastly, when the above three conditions are met, Rule 52(b) confers discretion on the courts of appeals to correct the forfeited error. Olano, 507 U.S. at 735, 113 S.Ct. 1770. The Court “explained that the discretion conferred by Rule 52(b) should be employed in those circumstances in which a miscarriage of justice would otherwise result”; that “[i]n our collateral-review jurisprudence, the term ‘miscarriage of justice’ means that the defendant is actually innocent”; and thus, that “[t]he court of appeals should no doubt correct a plain forfeited error that causes the conviction or sentencing of an actually innocent defendant.” Id. at 736, 113 S.Ct. 1770 (emphasis added) (internal quotation marks omitted) (citing Sawyer v. Whitley, 505 U.S. 333, 339-40, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992)). “[B]ut,” the Court said, “we have never held that a Rule 52(b) remedy is only warranted in cases of actual innocence.” Id. (emphasis *357in original). “Rather, ... [t]he Court of Appeals should correct a plain forfeited error affecting substantial rights if the error ‘seriously affeet[s] the fairness, integrity or public reputation of judicial proceedings.’ ... An error may ‘seriously affect the fairness, integrity or public reputation of judicial proceedings’ independent of the defendant’s innocence.” Id. at 736-37, 113 S.Ct. 1770 (emphasis added) (quoting Atkinson, 297 U.S. at 160, 56 S.Ct. 391).

Thus, Olano tells us that we should correct a plain forfeited error to prevent a miscarriage of justice, and that we should correct a plain forfeited error that seriously affects the fairness, integrity or public reputation of judicial proceedings. Id. at 736, 113 S.Ct. 1770; see also United States v. Garcia-Guizar, 160 F.3d 511, 516 (9th Cir.1998) (“We invoke plain error in our discretion to prevent a miscarriage of justice or to preserve the integrity and the reputation of the judicial process.” (emphasis added)).

There is no question that a conviction based on insufficient evidence “seriously affects the fairness, integrity or public reputation of judicial proceedings.” That standard comes from Atkinson, 297 U.S. at 160, 56 S.Ct. 391, and the Atkinson Court cited Brasfield v. United States, 272 U.S. 448, 450, 47 S.Ct. 135, 71 L.Ed. 345 (1926), which in turn cited Clyatt. In Clyatt, the Court reversed a conviction based on insufficient evidence even though the defendant had not preserved the claim, and explained that, “[n]o matter how severe may be the condemnation which is due to the conduct of a party charged with a criminal offense, it is the imperative duty of a court to see that all the elements of his crime are proved, or at least that testimony is offered which justifies a jury in finding those elements. Only in the exact administration of the law will justice in the long run be done, and the confidence of the public in such administration be maintained.” 197 U.S. at 222, 25 S.Ct. 429. Thus, it is clear that the Atkinson standard for plain error correction is met when a conviction is not supported by sufficient evidence as required by Jackson v. Virginia. See also Cruz, 554 F.3d at 845 (“When a conviction is predicated on insufficient evidence, the last two prongs of the Olano test will necessarily be satisfied: ... [T]he ‘fairness’ and ‘integrity’ of the courts, are seriously affected when someone is sent to jail for a crime that, as a matter of law, he did not commit....”); Gaydos, 108 F.3d at 509 (same).

The “devoid of evidence/manifest miscarriage of justice” standard, however, directly conflicts with Olano. Olano expressly held that Rule 52(b) is not limited to errors that involve a miscarriage of justice. 507 U.S. at 736, 113 S.Ct. 1770 (“[W]e have never held that a Rule 52(b) remedy is only warranted in cases of actual innocence.” (emphasis in original)). The Court held that in addition to miscarriages of justice, “[t]he Court of Appeals should correct a plain forfeited error affecting substantial rights if the error ‘seriously affect[s] the fairness, integrity or public reputation of judicial proceedings,’ ” because “[a]n error may ‘seriously affect the fairness, integrity or public reputation of judicial proceedings’ independent of the defendant’s innocence.” Id. at 736-37, 113 S.Ct. 1770 (emphasis added) (quoting Atkinson, 297 U.S. at 160, 56 S.Ct. 391). Since a conviction based on insufficient evidence seriously affects the fairness, integrity, and public reputation of judicial proceedings, under Olano, we should correct it. See Atkinson, 297 U.S. at 160, 56 S.Ct. 391; Clyatt, 197 U.S. at 222, 25 S.Ct. 429. Thus, the “devoid of evidence/manifest miscarriage of justice” standard improperly omits insuffieiency-of-the-evidence plain error.

*358The majority discusses the “manifest miscarriage of justice” formula in the context of explaining what the term “plain” in “plain error” should mean, but that does not make much sense. If an error is only “plain” if it is a manifest miscarriage of justice, then it would render meaningless the Olano Court’s holding that the courts of appeals “should” correct plain forfeited errors that “seriously affect the fairness, integrity or public reputation of judicial proceedings,” in addition to plain forfeited errors that entail a miscarriage of justice. 507 U.S. at 736, 113 S.Ct. 1770. Moreover, the Court has never engrafted a novel meaning onto “plain” to require that the error must be beyond any possible dispute. Instead, the Supreme Court’s explanation has simply been that “ ‘[p]lain’ is synonymous with ‘clear’ or, equivalently, ‘obvious.’ ” Id. at 734, 113 S.Ct. 1770. More recently, the Court said that “plain” means that “the legal error must be clear or obvious, rather than subject to reasonable dispute.” Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009) (emphasis added). “[T]he relevant question [in reviewing for sufficiency of the evidence] is whether ... any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson, 443 U.S. at 319, 99 S.Ct. 2781. The majority acknowledges that “[i]t may be that when no reasonable juror could find an element of a crime proved beyond a reasonable doubt, it will often be plain or obvious that the evidence was insufficient.” Majority Op. 332 n.11 (emphasis added); see also Cruz, 554 F.3d at 844 (“[I]t is hard to comprehend how a standard can be any more stringent in actuality than that ordinarily applied to sufficiency-of-the-evidence challenges.”). There is no support, then, for the majority’s position that the insufficiency of the evidence must be so obvious — that the record is actually “devoid of evidence pointing to guilt” — such that it is beyond any possible dispute.

k. Does not promote, but in fact offends important judicial policies

Finally, the majority falls back on unpersuasive arguments for why limiting our review of forfeited sufficiency-of-the-evidence claims to a narrow category of “devoid of evidence” cases “promote[s] important judicial policies.” Majority Op. 332. The majority first relies on Puckett, 556 U.S. at 134, 129 S.Ct. 1423, but Puckett is inapposite. Puckett involved a forfeited claim that the Government had failed to meet its obligations under a plea agreement, not an insufficiency-of-the-evidence claim. Id. at 133-34, 129 S.Ct. 1423. Moreover, the argument that the Court considered in Puckett was whether the plain error standard of Rule 52(b) should be applied at all to the defendant’s claim. No one doubts here that Rule 52(b) governs Delgado’s forfeited insufficiency-of-the-evidence claim.

The majority also reasons that its rule “ensures that the court is not placed in the position of an advocate scouring the record in search of hidden errors detrimental to one party in the case.” Majority Op. 332. But this completely ignores the Supreme Court’s admonishment that “it is the imperative duty of a court to see that all the elements of [the] crime are proved.” Clyatt, 197 U.S. at 222, 25 S.Ct. 429. And “we have long held that, under the plain error inquiry, errors of constitutional dimension will be noticed more freely than less serious errors.” United States v. Knowles, 29 F.3d 947, 951 (5th Cir.1994). The majority gives no logical reason why we should ignore these principles and instead, limit the cases of insufficient evidence that we will correct to only those in which the record is devoid of evidence.

*359Moreover, it is actually inefficient to uphold on direct appeal a defendant’s conviction that is supported by insufficient evidence simply because the record is not devoid of evidence. In such a case, the defendant will be able to obtain habeas relief for the ineffective assistance of her trial counsel or appellate counsel for failing to object to the sufficiency of the evidence. See United States v. Bass, 810 F.3d 321, 325-30 (5th Cir.2002) (concluding that the evidence was insufficient under the Jackson v. Virginia sufficiency-of-the-evidence standard and vacating defendant’s conviction based on ineffective assistance of his counsel in failing to raise the issue on appeal). Accordingly, any defendant whose conviction is based on insufficient evidence but whose attorney failed to raise the issue will ultimately be entitled to relief from that conviction. Thus, nothing is gained by having an appellate court review the evidence under a more deferential standard on direct appeal only to have to go back later and review the evidence anew under the proper standard when the defendant later brings a collateral attack.

5. Six of the other courts of appeals have not adopted a “devoid of evidence/miscarriage of justice" standard, and several prominent scholars have agreed that there should be no difference in the standard of review of the sufficiency of the evidence whether or not the defendant properly raised it

As mentioned before, the “devoid of evidence/manifest miscarriage of justice” standard does find support in the jurisprudence of a number of the circuits, including this one.10 However, based on the constitutionally significant flaws in that standard, it is not surprising that six circuits have not adopted it. The Third, Eighth, and Tenth Circuits have held that a conviction based on insufficient evidence is itself plain error under Rule 52(b).11 The Ninth *360Circuit has applied a standard of review to forfeited insufficiency-of-the-evidence claims that is substantively the same as that applied when the issue is properly raised.12 The Second and Fourth Circuits have said that they will review forfeited insufficiency-of-the-evidence claims for plain error and neither has adopted a “devoid of evidence” standard.13 And although the Eleventh Circuit has said that it applies a “devoid of evidence/manifest miscarriage of justice” standard, it recently reviewed a forfeited insufficiency-of-the-evidence claim for plain error without mentioning this standard, and instead applied a sufficiency-of-the-evidence standard.14 Moreover, this court has recently questioned whether there is a distinct standard of review for forfeited insufficiency-of-the-evidence claims;15 and in one case in this court, the Government con*361ceded there was no distinction.16 Finally, several prominent scholars agree that there should be no difference between the standards of appellate review for preserved and forfeited claims of insufficient evidence.17

We should take this en banc opportunity to join our six sister circuits that reaffirm the constitutionally mandatory standard required by Jackson for appellate review of plain insufficiency-of-evidence errors even if they have been forfeited on appeal, and to reject the erroneous “devoid of evidence” standard perpetuated by the majority today.

III. Insufficiency of the evidence

In accord with the principles explained above, even though Delgado forfeited the issue of the sufficiency of the evidence supporting her conspiracy conviction, we must, nonetheless, review the evidence to determine whether it is sufficient under no less a standard than that compelled by the Due Process Clause. “[T]he critical inquiry on review of the sufficiency of the evidence to support a criminal conviction must be not simply to determine whether the jury was properly instructed, but to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt.” Id. at 318, 99 S.Ct. 2781. Accordingly, we must determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. at 319, 99 S.Ct. 2781 (emphasis in original).

A. Guiding principles for reviewing the sufficiency of the evidence of a conspiracy conviction

Our analysis of whether the record evidence is sufficient to prove the defendant’s guilt of conspiracy beyond a reasonable doubt has long been guided by certain principles. Nearly seventy years ago, the Supreme Court made clear that “charges of conspiracy are not to be made out by piling inference upon inference.” Direct Sales Co. v. United States, 319 U.S. 703, 711, 63 S.Ct. 1265, 87 L.Ed. 1674 (1943). In Jackson v. Virginia, the Court stated *362that “[a] ‘reasonable doubt,’ at a minimum, is one based upon ‘reason.’ ” 443 U.S. at 317, 99 S.Ct. 2781. Consistent with this exhortation, “[a] conviction must be overturned if it is based on speculation alone” because “ ‘[a] verdict may not rest on mere suspicion, speculation, or conjecture, or on an overly attenuated piling of inference on inference.’ ” E.g., United States v. Rojas Alvarez, 451 F.3d 320, 333 (5th Cir.2006) (quoting United States v. Pettigrew, 77 F.3d 1500, 1521 (5th Cir.1996)).18

Likewise, while we must view the evidence in the light most favorable to the prosecution, Jackson, 443 U.S. at 319, 99 S.Ct. 2781, “we do not give the government the benefit of every potential inference but rather, only those inferences reasonably and logically flowing from the other evidence,” Santistevan, 39 F.3d at 258 (emphasis in original); see also Jackson, 443 U.S. at 319, 99 S.Ct. 2781 (It is “the responsibility of the trier of fact ... to draw reasonable inferences from basic facts to ultimate facts.” (emphasis added)); United States v. Percel, 553 F.3d 903, 910 (5th Cir.2008) (We must accept “reasonable inferences from the evidence to support the verdict.” (emphasis added) (internal quotation marks omitted)). Moreover, in deciding whether an inference is reasonable, “[w]e consider the countervailing evidence as well as the evidence that supports the verdict.” E.g., United States v. Brown, 186 F.3d 661, 664 (5th Cir.1999) (internal quotation marks omitted).

Applying these principles, it is clear that the evidence of a conspiratorial agreement is insufficient under Jackson. Perhaps the majority’s contrary conclusion is explained by the fact that its opinion fails to mention even one of these fundamental rules.

B. The evidence is insufficient to prove that a drug distribution agreement existed

In my view, the record admits only to speculation that Delgado had entered into an agreement with any bona fide conspirator to further distribute marijuana. Only three possible conspirators can be imagined: the government cooperator, Vasquez; the unknown supplier of the marijuana; and the unidentified North Carolina buyer. However, Vasquez, who was a government informer, could not be *363a bona fide conspirator, because “there can be no indictable conspiracy -with a government informer who secretly intends to frustrate the conspiracy.” Sears v. United States, 343 F.2d 139, 142 (5th Cir. 1965).19 As to the unknown supplier and the unidentified buyer, the Government introduced no evidence showing that Delgado agreed to anything beyond one buy and one sale of a quantity of marijuana. Each transaction establishes, at most, a buyer-seller relationship, and not a drug distribution agreement. However, “a buyer-seller relationship, without more, will not prove a conspiracy.” United States v. Maseratti 1 F.3d 330, 336 (5th Cir.1993); accord United States v. Colon, 549 F.3d 565, 569 (7th Cir.2008) (“What is necessary and sufficient is proof of an agreement to commit a crime other than the crime that consists of the sale itself.”).20

Courts have identified factors that, when combined with other evidence of a conspiracy, may support (without requiring) an inference of an agreement to commit a separate crime beyond a simple sale; none of those factors is present in this case. There is no evidence of “prolonged cooperation” between Delgado and anyone (besides, perhaps, Vasquez, who is an ineligible conspirator);21 nor is there evidence that the marijuana was “fronted” or “sold on credit” to Delgado22 or by Delgado.23 Also distinguishable from this case are cases in which a seller helped a buyer “to create a distribution system for his illegal *364product”; and cases in which a buyer had “agreed to look for other customers” for the seller, “had received a commission on sales to those customers,” “had advised [the seller] on the conduct of [his] business^] or had agreed to warn [the seller] of threats to [his] business from competing dealers or from law-enforcement authorities.”24 The trial evidence in this case showed none of these factors from which a rational jury could infer a drug distribution agreement.

Nor could a rational jury infer a conspiracy based on the fact that Vasquez testified that “according to her [Delgado’s] information[,] ... she was going to wait till nighttime to take that marijuana back to her source of supply.” As the panel majority here explained: “[T]he ability to return merchandise is a feature of many ordinary retail transactions and does not usually indicate the existence of a broader agreement between the merchant and the customer. Thus, the Second Circuit has held that when a buyer bought 170 ounces of cocaine and later returned 75 ounces to the seller, it could not be inferred that the buyer was in a conspiracy with the seller. United States v. Koch, 113 F.2d 982, 983 (2d Cir.1940).” United States v. Delgado, 631 F.3d 685, 696 n. 9 (5th Cir.2011). Moreover, there is no evidence that Delgado received the marijuana on credit, as opposed to having simply purchased it. Cf. Posada-Rios, 158 F.3d at 860 (“[E]vidence that [a buyer] purchased some of the cocaine on consignment ... is ‘strong evidence’ of membership in a conspiracy because it indicates a strong level of trust and an ongoing, mutually dependent relationship.”). Therefore, there is no evidence of a continuing, symbiotic relationship between Delgado and the person who may have supplied her with marijuana.

Nor could a rational jury, without piling inference upon inference, find beyond a reasonable doubt that a conspiracy existed simply because of the amount of marijuana (230 kilograms) that was found in the truck on Delgado’s property. This court has held that “the quantity of contraband alone” is “insufficient to establish a conspiracy.” United States v. Morgan, 835 F.2d 79, 82 (5th Cir.1987) (“over 200 pounds of marijuana”). And in several cases we have held that evidence of a large quantity of drugs — over 1000 pounds of marijuana — even coupled with evidence of other potential co-conspirators was still insufficient to prove a conspiracy.25 Like*365wise, the Second, Seventh, and Tenth Circuits have all held that the purchase or sale of a bulk quantity of illegal drugs is insufficient to support a conspiracy conviction.26

The reason that evidence of the quantity of drugs — and of an intent to return the drugs — cannot prove a conspiracy is because the government must establish not only that the seller knew the buyer intended to engage in further distribution, but that the seller intended and agreed to the shared intent of the buyer to further distribute. “There may be circumstances in which the evidence of knowledge is clear,

yet the further step of finding the required intent cannot be taken.... [N]ot every instance of sale of restricted goods ... in which the seller knows the buyer intends to use them unlawfully, will support a charge of conspiracy.” Direct Sales, 319 U.S. at 712, 63 S.Ct. 1265. Accordingly, the First, Second, Third, Seventh, and Ninth Circuits have all stated that even where the evidence shows that the seller knew that the buyer was purchasing a quantity of drugs in order to resell them, without additional evidence of a distribution agreement, the evidence only shows a buyer-seller relationship.27

*366Thus, it is clear that there was simply no evidence from which a rational jury could find beyond a reasonable doubt a joint endeavor between Delgado and anyone (other than the government informant) to possess with the intent to distribute drugs. Because the evidence is insufficient to prove every element of the offense beyond a reasonable doubt, I would reverse Delgado’s conspiracy conviction.

C. The majority’s mistaken view that the evidence is sufficient

The majority by contrast, concludes that “the evidence presented at trial was more than sufficient to support Delgado’s conspiracy conviction.” Majority Op. 332. Although the majority purports to apply a sufficiency standard, and not the “devoid of evidence” standard that it says governs this case, it is clear that the majority does not actually apply the Jackson v. Virginia standard because it bases its finding on mere speculation and piles of inferences, which is plainly not evidence that supports a finding of proof beyond a reasonable doubt. Thus, the majority, despite its contrary representation, has not applied, but has jettisoned the Jackson v. Virginia sufficiency-of-the-evidenee test and has in fact applied what could be called an “any evidence,” “scintilla of evidence,” or “modicum of evidence” test because the finding of a conspiratorial agreement here is plainly not warranted by the probative evidence introduced at trial.

First, the majority seriously misconstrues the “buyer-seller” rule. The majority says that “[t]he buyer-seller exception ... shields mere acquirers and street-level users, who would otherwise be guilty of conspiracy to distribute, from more severe penalties reserved for distributers.” Majority Op. 333. But the buyer-seller doctrine is not, as the majority states, an “exception” to liability otherwise established, but a recognition that unless the buyer and the seller have reached an agreement to further distribute the drugs, there simply is no punishable conspiracy and hence, no liability for conspiracy.

“What distinguishes a conspiracy from its substantive predicate offense is not just the presence of any agreement, but an agreement with the same joint criminal objective.” United States v. Dekle, 165 F.3d 826, 829 (11th Cir.1999). The indictment here charged Delgado only with a conspiratorial agreement to possess marijuana with the intent to distribute it. “This joint objective is missing where the conspiracy is based simply on an agreement between a buyer and a seller for the *367sale of drugs. Although the parties to the sales agreement may both agree to commit a crime, they do not have the joint criminal objective of distributing drugs.” Id. That is, an alleged conspirator’s mere knowledge of Delgado’s intent and objective is insufficient; the state of mind must proceed beyond knowledge and intent to an agreement to a shared objective. Direct Sales, 319 U.S. at 712, 63 S.Ct. 1265; see also 2 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law § 12.2(c)(3) (1986) (emphasizing the importance of “the step from knowledge to intent and agreement” in Direct Sales). “Evidence that a buyer intends to resell the product instead of personally consuming it does not necessarily establish that the buyer has joined the seller’s distribution conspiracy. This is so even if the seller is aware of the buyer’s intent to resell.” Boidi, 568 F.3d at 30 (internal quotation marks omitted) (quoting Hawkins, 547 F.3d at 74) (citing U.S. v. Lechuga, 994 F.2d 346, 349 (7th Cir.1993); United States v. Glenn, 828 F.2d 855, 857-58 (1st Cir.1987) (Breyer, J.)).

“There are practical reasons for not conflating sale with conspiracy. ‘A sale, by definition, requires two parties; their combination for that limited purpose does not increase the likelihood that the sale will take place, so conspiracy liability would be inappropriate.’ ... ‘A conspiracy involves more people and can therefore commit more crimes; and it can do so more efficiently, by exploiting the division of labor and by arranging concealment more effectively — sometimes through suborning law enforcers.’ There is nothing like that here, so far as [Delgado’s] involvement was concerned. And the situation is not altered just because [s]he was a buyer for resale rather than for h[er] personal consumption.” Colon, 549 F.3d at 569 (citations omitted) (quoting United States v. Townsend, 924 F.2d 1385, 1394 (7th Cir. 1991); United States v. Manzella, 791 F.2d 1263, 1265 (7th Cir.1986)).

As explained above, the trial record does not reveal even one factor that courts have said may support an inference of an agreement to commit a separate crime beyond a buyer-seller relationship. Significantly, the majority is unable to point to anything in the record that reveals any such factor. Thus, there is simply nothing to support the majority’s position that there was a drug distribution agreement or something more than a buyer-seller relationship here.

Next, the majority says that “specific facts support the finding that ... Delgado worked with a supplier and an intended buyer who shared her intent to further distribute the drugs in her possession.” Majority Op. 333. First, the majority points to Vasquez’s testimony that Delgado said she planned to return the marijuana “is evidence that Delgado and the supplier were working together with the shared goal of reselling the drugs.” Id. at 333. The majority posits that “[w]hen a wholesaler attempts to cultivate a repeat customer by offering a return policy to a purchaser who he knows will resell the merchandise, the wholesaler takes an interest in the success of the customer’s resale business,” and “[t]hus, the jury could reasonably conclude, as it did, that Delgado conspired with her supplier.” Id. I disagree.

There was no evidence of a “return policy” in this case. Vasquez testified that Delgado planned to take the marijuana back, not that her supplier had agreed to take it back. Thus, an inference is required to find that Delgado and her supplier had an agreement that she could return the drugs if her resale plan fell through. And another inference is required to find that such a return policy meant that a distribution agreement existed between *368Delgado and her supplier. Thus, this evidence violates the rule that “charges of conspiracy are not to be made out by piling inference upon inference.” Direct Sales, 319 U.S. at 711, 63 S.Ct. 1265. Moreover, each of these are unreasonable inferences having absolutely no evidentiary support in the record. “[W]e do not give the government the benefit of every potential inference but rather, only those inferences reasonably and logically flowing from the other evidence.” Santistevan, 39 F.3d at 258 (emphasis in original).

The second “specific fact” that the majority points to as proof of the conspiracy is “Vasquez[’s] testi[mony] that Delgado was waiting to be paid by her buyer for the marijuana in advance of shipment.” Majority Op. at 334. However, nothing in the record supports the assertion that Delgado was waiting for or expecting to be paid in advance of sale. Vasquez testified only that Delgado was waiting to receive some “money she was going to be paid, which, in turn, she was going to use to pay us off once the marijuana had been loaded inside the boxes.” Vasquez then testified that Delgado had not been paid “for her part of the marijuana,” but when asked “who was supposed to pay her?” Vasquez answered, “I am not aware of that.” Vasquez never testified as to the source or reason for the payment of money on which Delgado was waiting. The evidence reflects that Delgado’s trucking company was an ongoing business from which she received legitimate money payments for hauling shipments nationwide. See Brown, 186 F.3d at 664 (In deciding whether an inference is reasonable, “[w]e consider the countervailing evidence as well as the evidence that supports the verdict.” (internal quotation marks omitted)).

The majority claims that by “[viewing this testimony in the light most favorable to the verdict, as we must, Vasquez confirmed that Delgado was expecting advance payment for the marijuana.” Majority Op. at 334 n.16. Although it is true that we must “view[ ] the evidence in the light most favorable to the prosecution,” Jackson, 443 U.S. at 319, 99 S.Ct. 2781, we draw only “reasonable inferences from the evidence to support the verdict.” Percel, 553 F.3d at 910 (emphasis added). Vasquez’s testimony provides no reasonable basis to infer that Delgado was not going to ship the marijuana until she was paid. And even if it was reasonable to infer from Vasquez’s testimony that Delgado was waiting for advance payment for the marijuana, yet another unfounded inference would be required to prove the existence of a conspiracy — that advance payment for drugs necessarily implies a drug distribution agreement between Delgado and the buyer. But that is simply piling unsupported inferences upon inferences, which is insufficient to prove a conspiracy. Direct Sales, 319 U.S. at 711, 63 S.Ct. 1265.

Moreover, the majority conflates evidence of advance payment and evidence that a defendant was “fronted” drugs on consignment or on credit — but they are exact opposites. Unlike sales on credit, a seller receiving advance payment from a buyer does not “indicate! ] a strong level of trust and an ongoing, mutually dependent relationship,” Posadar-Rios, 158 F.3d at 860, and it does not support an inference of any further agreement between the buyer and seller. The majority misinterprets our precedent when it contends that “[Receiving fronted money in a drug deal is ‘strong evidence of membership in a conspiracy because it indicates a strong level of trust and an ongoing, mutually dependent relationship.’ ” Majority Op. 334 (quoting Posadar-Rios, 158 F.3d at 860). What Posada-Rios actually said is entirely different: “[T]he government also presented evidence that [the defendant] *369purchased some of the cocaine on consignment, which is ‘strong evidence’ of membership in a conspiracy because it indicates a strong level of trust and an ongoing, mutually dependent relationship.” 158 F.3d at 860 (emphasis added) (quoting United States v. Rodriguez, 53 F.3d 1439, 1445 (7th Cir.1995)). Rodriguez, in turn, discussed testimony that the defendant was seen delivering drugs to another person “without receiving payment.” 53 F.3d at 1445. The court concluded that “[a]n individual’s participation in drug deals which involve credit transactions such as ‘fronting’ is strong evidence of membership in a conspiracy.” Id. (internal quotation marks omitted). In sum, there is absolutely no support for the contention that receiving advance payment for drugs — as opposed to providing drugs before receiving payment — is any evidence of a conspiracy. A simple illustration proves the point: Nearly every purchase from a mail order or internet vendor requires advance payment; but it would be unreasonable to infer that a cooperative agreement exists between the vendor and customer whereby they mutually intend for the customer to further distribute the merchandise.

The majority next asserts that “Delgado referred to her intended buyer as ‘the person who was going to work with her,’ indicating that their relationship extended beyond one simple buy-sell transaction.” Majority Op. 334. But that simply misstates the record. The prosecutor asked Vasquez, “according to her, did anything happen to the person she was supposed to deliver the marijuana to?” And Vasquez responded, “According to her information, the deal was going to be canceled because the person that was going to work with her had been arrested in McAllen, here in the Valley.” It is disingenuous for the majority to say that this isolated piece of Vasquez’s testimony is “significant evidence that Delgado conspired with her intended recipient in North Carolina.” Id. at 334. Due process requires sufficient proof of guilt beyond a reasonable doubt, not mere speculation of guilt.

Finally, the majority says, “possession of a large quantity of drugs is not, by itself, sufficient to support a conspiracy conviction.” Majority Op. 334. This is correct. See Rivera, 273 F.3d at 755. But the majority completely eviscerates this important bulwark against unsupported conspiracy convictions by also stating that “the quantity of drugs — over 500 pounds — is itself evidence that Delgado was involved in a conspiracy,” because “it is evidence that can help ‘justify the inference that more than one person must be involved in moving [the large quantity] toward its ultimate dispersal.’” Majority Op. 334 (emphasis added) (final alteration in original) (quoting United States v. Barnard, 553 F.2d 389, 393 (5th Cir.1977)).28 However, evidence that more than one person is involved in moving drugs is simply not enough to reasonably support a finding beyond a reasonable doubt that Delgado had an agreement with a bona fide conspirator to further distribute drugs. In fact, the record here made clear that Vasquez was involved in Delgado’s plan to transport the marijuana to North Carolina, but Delgado could not have conspired with Vasquez because he was a government informant who did not intend to carry out the conspiracy. See Sears, 343 F.2d at 142. There must be more than just inference piled upon inference.

*370The evidence that the majority finds sufficient to prove beyond a reasonable doubt that a conspiracy existed is frankly shocking. The majority’s analysis amounts to simply looking for “[a]ny evidence that is relevant — that has any tendency to make the existence of [an agreement to further distribute marijuana] slightly more probable than it would be without the evidence” — in other words, the majority looks for what “could be deemed a ‘mere modicum’ ” of evidence. See Jackson, 443 U.S. at 320, 99 S.Ct. 2781. In effect, the majority transmutes the sufficiency-of-the-evidence standard into the same “no evidence” standard that the Jackson Court rejected as incompatible with due process. Id. (“[A] mere modicum of evidence may satisfy a ‘no evidence’ standard.... But it could not seriously be argued that such a ‘modicum’ of evidence could by itself rationally support a conviction beyond a reasonable doubt.” (alterations in original) (internal quotation marks omitted)); see also Newman, 68 N.Y.U. L.Rev. at 996 (“The fact that evidence is relevant does not automatically make it sufficient to support a criminal conviction.”). In other words, while the majority purports to decide that the evidence is sufficient, it appears that the majority actually means that the record is not “devoid of evidence.” This case shows that Judge Newman’s compunction was not exaggerated: “My concern is that federal appellate courts ... examine a record to satisfy themselves only that there is some evidence of guilt and do not conscientiously assess whether the evidence suffices to permit a finding by the high degree of persuasion required by the ‘reasonable doubt’ standard.” Id. at 993.

IV. Cumulative error

I also believe, unlike the majority, that we must vacate Delgado’s conviction of possession of marijuana with the intent to

distribute because her trial was rendered fundamentally unfair by the combined effect of a series of significant errors: (1) The prosecutor’s improper statement during closing argument that Delgado, who did not testify, had lied to investigating officers — and the prosecutor’s improper statement that the Government informant was credible, which the majority completely ignores; (2) the Government agent’s nonresponsive testimony about unspecified and uncharged “narcotics trafficking” involving Delgado’s company; and (3) the trial court’s erroneous instruction that Delgado could be found guilty of possession if she had been deliberately ignorant to the presence of marijuana on her property, despite the complete absence of a proper factual predicate for a deliberate ignorance charge. These errors have been exacerbated on appeal by the 119 gaps in both the audio recording and the transcript of the trial record. The gap-filled transcript has deprived Delgado’s new appellate counsel of a verbatim record of the trial, in violation of the Court Reporter’s Act, 28 U.S.C. § 753(b), and limited her ability to present an effective appeal. The combined prejudicial effect of these errors brings this case squarely within the cumulative error doctrine, which “provides that an aggregation of non-reversible errors (i.e., plain errors failing to necessitate reversal and harmless errors) can yield a denial of the constitutional right to a fair trial, which calls for reversal.” United States v. Munoz, 150 F.3d 401, 418 (5th Cir.1998). Because, in my view, the aggregation of these errors deprived Delgado of a fair trial, I would vacate and remand for a new trial on the possession charge. See Delgado, 631 F.3d at 698-711.

V. Conclusion

“[I]t is far worse to convict an innocent man than to let a guilty man go free.” *371Winship, 397 U.S. at 372, 90 S.Ct. 1068 (Harlan, J., concurring); see also Schlup v. Delo, 513 U.S. 298, 325, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995) (“The maxim of the law is ... that it is better that ninety-nine ... offenders should escape, than that one innocent man should be condemned.” (alterations in original) (internal quotation marks omitted)). This is why “[t]he Due Process Clause ... protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged,” Winship, 397 U.S. at 364, 90 S.Ct. 1068, and why “an essential of the due process guaranteed by the Fourteenth [and Fifth Amendments is] that no person shall be made to suffer the onus of a criminal conviction except upon sufficient proof — defined as evidence necessary to convince a trier of fact beyond a reasonable doubt of the existence of every element of the offense,” Jackson, 443 U.S. at 316, 99 S.Ct. 2781. This is also why “it is the imperative duty of a court to see that all the elements of [the] crime are proved,” whether raised by the defendant or not. Clyatt, 197 U.S. at 222, 25 S.Ct. 429. Accordingly, it has been said, correctly in my view, that “[t]here is no such thing as a default judgment in the criminal law.” 2 Childress & Davis, supra, § 9.12, at 9-39. And consequently, “the minimum level of evidence required to convict should not vary” whether or not the defendant properly raises it. Id.

In upholding Delgado’s conviction on less than sufficient proof of guilt, the majority’s opinion supports Judge Newman’s conclusion that “the constitutional jurisprudence of this Nation has accepted the ‘reasonable doubt’ standard as a verbal formulation to be conveyed to juries ... but has failed to take the standard seriously as a rule of law against which the validity of convictions is to be judged.” Newman, 68 N.Y.U. L.Rev. at 980; see also id. at 996 (“[M]y basic point [is] that courts do not take seriously their obligation to assess sufficiency of evidence in light of the ‘reasonable doubt’ standard[ ] [and] [t]hey end their inquiry upon noticing the existence of ‘some’ evidence of guilt.”). Consequently, “we are convicting some people who are not guilty beyond a reasonable doubt.” Id. at 980. I have no doubt that the majority’s opinion, if followed, will lead to countless conspiracy convictions, which are not supported by sufficient evidence of an illegal agreement. I share Judge Newman’s belief that “that the ‘reasonable doubt’ standard should express our society’s view that criminal convictions require, at the least, a high degree of certainty of guilt.” Id. at 981. Today’s majority opinion runs contrary to this belief. The majority completely ignores all of the firmly established rules that have long guided our review for sufficiency of the evidence in conspiracy cases, such as this, which are based entirely on circumstantial evidence. In my view, the majority abdicates its “imperative duty ... to see that all the elements of [Delgado’s] crime are proved.” Clyatt, 197 U.S. at 222, 25 S.Ct. 429.

Because I believe that the evidence is obviously insufficient to prove that Delgado entered into a drug distribution agreement with a bona fide conspirator, and that the cumulative effect of a series of significant errors rendered Delgado’s trial fundamentally unfair, I would reverse and dismiss the conspiracy count and vacate and remand the possession count of the indictment for further proceedings. The majority reaches the opposite conclusion on both counts, and therefore, I respectfully dissent.

. For the reasons explained in the panel majority opinion, "[t]he cumulative impact of [numerous] significant errors, together with the jury’s false belief that Delgado had committed the conspiracy offense, clearly deprived her of her right to a fundamentally fair trial on the charge of possession with intent to distribute marijuana.” United States v. Delgado, 631 F.3d 685, 698-711 (5th Cir. 2011).

. See also the jury instructions: "For you to find the Defendant guilty of [conspiracy], you must be convinced that the Government has proved ... beyond a reasonable doubt [inter alia] ... that two or more persons, directly or indirectly, reached an agreement to possess with the intent to distribute a controlled substance.” (emphasis added).

. See also United States v. Pennington, 20 F.3d 593, 597 n. 2 (5th Cir.1994) ("[W]here the *349trial court’s action renders the motion for acquittal ‘an empty ritual/ the failure to renew the motion does not constitute waiver by the defendant. The district court stated, '1 can’t find anything in this case that would warrant this Court granting a new trial or a motion for acquittal.' Thus, since here the defendants' motions would have been empty rituals, ... the only question is whether there was sufficient evidence for a rational jury to have convicted them.” (citation omitted)); United States v. Gonzalez, 700 F.2d 196, 203 n. 6 (5th Cir.1983) (“At the close of the evidence, the court moved with dispatch and without waiting for the formal motion considered the evidence and ordered entry of judgment of acquittal on the first two counts. Requiring Gonzalez to move for acquittal on the last two counts would be an empty ritual.”).

. Brasfield in turn cited Clyatt and Wiborg; and thus, the Atkinson standard is rooted in the principles that “it is the imperative duty of a court to see that all the elements of [the] crime are proved,” Clyatt, 197 U.S. at 222, 25 S.Ct. 429; and that insufficient evidence of guilt is a plain error that must be corrected, even if forfeited by the defendant, Wiborg, 163 U.S. at 658, 16 S.Ct. 1127.

. Although the Rules Advisory Committee’s notes do not mention Atkinson, the Supreme Court has recognized that Rule 52(b) also incorporates the standard stated there, viz., that an error must "seriously affect the fairness, integrity, or public reputation of judicial proceedings” to be correctable plain error. See Young, 470 U.S. at 7, 105 S.Ct. 1038 (referring to "the standard laid down in United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 80 L.Ed. 555 (1936), and codified in Federal Rule of Criminal Procedure 52(b)”); see also United States v. Frady, 456 U.S. 152, 163 n. 13, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982).

. United States v. Hines, 563 F.2d 737, 740-41 (5th Cir. 1977) ("The failure of the appellant to move for acquittal at the close of the Government's case does not preclude our reversing this case upon a finding that there is not sufficient evidence to support the verdict.... [T]he error of submitting the case to the jury for determination is so plain and vital that this court is at liberty to and will reverse even in the absence of a proper motion and exception, not because the defendant has a right to demand a reversal, but solely in the public interest and to guard against injustice.” (internal quotation marks omitted) (citing Wiborg, 163 U.S. at 658, 16 S.Ct. 1127)); Hall v. United States, 286 F.2d 676, 677 (5th Cir. 1961) ("It is well settled that, where there is no substantial evidence to support a conviction in a criminal case, it is the duty of the trial court to direct a verdict of acquittal, regardless of whether a motion to that effect is made. If from the record or facts of which the court may take notice it appears that the conviction cannot be sustained, plain error appears on the record, and the judgment will be reversed.” (internal quotation marks omitted) (citing Clyatt, 197 U.S. 207, 25 S.Ct. 429)).

. E.g., United States of America v. Carnes, 309 F.3d 950, 956 (6th Cir.2002) ("The evidence against Carnes on the witness tampering count is reviewed only for a ‘manifest miscarriage of justice’ because of his failure to make a motion for judgment notwithstanding the verdict pursuant to Fed. R.Crim. Pro. 29. Under this standard, we only reverse a conviction if the record is 'devoid of evidence pointing to guilt.’ ” (citation omitted)); United States v. Pena-Lora, 225 F.3d 17, 26 (1st Cir. 2000) ("[W]e will not reverse unless the conviction under Count 5 would result in a clear and gross injustice.” (internal quotation marks omitted)); United States v. Spinner, 152 F.3d 950, 956 (D.C.Cir.1998) ("When reviewing a sufficiency-of-the-evidence challenge for plain error, we reverse only to prevent a 'manifest miscarriage of justice.’ Such a miscarriage would exist only if the record is devoid of evidence pointing to guilt, or ... because the evidence on a key element of the offense was so tenuous that a conviction would be shocking.” (alteration in original) (citation and internal quotation marks omitted)); United States v. Parker, 133 F.3d 322, 328 (5th Cir.1998) ("A conviction may be reversed under the plain error standard only to avoid a manifest miscarriage of justice. Such a miscarriage would exist only if the record is devoid of evidence pointing to guilt, or ... because the evidence on a key element of the offense was so tenuous that a conviction would be shocking.” (alteration in original) (citation and internal quotation marks omitted)); United States v. Meadows, 91 F.3d 851, 855 (7th Cir.1996) (“Olano's requirements for plain error are met with respect to sufficiency of the evidence claims if the record is devoid of evidence pointing to guilt, or if the evidence on a key element of the offense was so tenuous that a conviction would be shocking.” (internal quotation marks omitted)); United States v. Wright, 63 F.3d 1067, 1072 (11th Cir.1995) ("Appellant failed to move for a judgment of acquittal at the close of his case. Accordingly, we restrict our review of his claims to whether his conviction resulted in a manifest miscarriage of justice. Such a miscarriage would exist only if the record is devoid of evidence pointing to guilt, or if the evidence on a key element of the offense was so tenuous that a conviction would be shocking.” (footnote and internal quotation marks omitted)).

. The other formulation of “manifest miscarriage of justice” mentioned by the majority— that it is a manifest miscarriage of justice when "the evidence on a key element of the offense is so tenuous that a conviction would be shocking” — first appeared in United States v. Landers, 484 F.2d 93, 94 (5th Cir.1973). Landers cited United States v. Haney, 429 F.2d 1282 (5th Cir.1970), and Whatley v. United States, 428 F.2d 806, 807 (5th Cir.1970). Whatley only referenced "manifest miscarriage of justice,” 428 F.2d at 807; and Haney said, "Our review of the sufficiency of the evidence in this posture of the case is limited to a determination of whether there has occurred a 'manifest miscarriage of justice’. Such a miscarriage exists only if it appears that the record is 'devoid of evidence pointing to guilt.' ” 429 F.2d at 1283. All of the cases cited in Whatley and Haney on this point lead back to Molina. Thus, the "so tenuous that a conviction would be shocking” formulation of Landers is grounded in the same “devoid of evidence/miscarriage of justice” formulation adopted in Molina. And like Molina, Landers pre-dates Jackson v. Virginia. Therefore, my explanation of the genesis of the "devoid of the evidence” standard applies equally to the alternative "so tenuous that a conviction would be shocking” formulation.

. The other circuits that apply the “devoid of evidence/manifest miscarriage of justice” standard similarly rely on cases decided during the Supreme Court’s pre-Jackson, "no evidence” era. E.g., United States v. Carnes, 309 F.3d 950, 956 (6th Cir.2002) (citing line of cases that cite back to pre-Jackson cases);United States v. Pena-Lora, 225 F.3d 17, 26 (1st Cir.2000) (same); United States v. Spinner, 152 F.3d 950 (D.C.Cir.1998) (same); United States v. Meadows, 91 F.3d 851, 855 (7th Cir.1996) (same); United States v. Wright, 63 F.3d 1067, 1074 (11th Cir.1995) (same).

. See cases cited supra note 7.

. United States v. Wolfe, 245 F.3d 257, 261 (3d Cir.2001) ("[T]he prosecution's failure to prove an essential element of the offense constitutes plain error under Rule 52(b) of the Federal Rules of Criminal Procedure.”); United States v. Gaydos, 108 F.3d 505, 509 (3d Cir. 1997) ("Gaydos did not preserve this issue for appeal by filing a timely motion for a judgment of acquittal, so we review the sufficiency of the evidence under a plain error standard .... We believe that affirming a conviction where the government has failed to prove each essential element of the crime beyond a reasonable doubt 'affect[s] substantial rights,’ and seriously impugns 'the fairness, integrity and public reputation of judicial proceedings.’ ") (alteration in original) (quoting Olano, 507 U.S. at 732, 113 S.Ct. 1770); United States v. Santistevan, 39 F.3d 250, 256-57 (10th Cir.1994) ("[W]e believe the prosecution’s failure to prove an essential element of the crimes charged beyond a reasonable doubt in this case offends our most fundamental sense of due process. See In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). Accordingly, it is appropriate for us to exercise our power to raise the sufficiency of the evidence sua sponte as plain error.”); United States v. Bowie, 892 F.2d 1494, 1496-97 (10th Cir.1990) (“When considering the sufficiency of the evidence to support the verdict, we have stated the plain error standard in different words, but the standard actually applied is essentially the same as if there had been a timely motion for acquittal.” (citations omitted)); United States v. Zolicoffer, 869 F.2d 771, 774 (3d Cir.1989) (“fTjhe failure to prove one of the essential elements of a crime is the type of fundamental error which may be noticed by an appellate court notwithstanding the defendant’s failure to raise it in the district court.”); United States v. McIntyre, 467 F.2d 274, 276 n. 1 (8th Cir. 1972) ("[T]he plain error doctrine, Fed. R.Crim.P. 52(b), would undoubtedly apply in any case where evidence is lacking to support a conviction since under those circumstances it would clearly affect the substantial rights of the defendants.” (citations omitted)); Strickland v. United States, 339 F.2d 866, 868 (10th Cir. 1965) (“[T]he Government failed to prove an essential element of the offense. This er*360ror is a fundamental one which may be noticed by the court, despite the fact that appellant failed to raise the issue properly in the trial court. Rule 52(b), Fed. R.Crim. P. ... [W]here conviction was had without proof of one of the elements, it is necessary that the appellate court take notice although not properly raised at trial.”).

. See United States v. Flyer, 633 F.3d 911, 917 (9th Cir.2011) ("[E]ven under plain-error review, a court should not affirm a conviction if the record clearly showed that the evidence was insufficient.” (second alteration in original) (internal quotation marks and ellipsis omitted)); United States v. Cruz, 554 F.3d 840, 844 (9th Cir.2009) ("Cruz failed to renew his motion. As a result, the standard of review in this case rises to the at least theoretically more stringent 'plain error’ standard. We say 'theoretically' because, while plain-error review appears more stringent in theory, it is hard to comprehend how a standard can be any more stringent in actuality than that ordinarily applied to sufficiency-of-the-evidence challenges.” (citation omitted)); see also id. at 853 (Kozinski, J., dissenting) (explaining that the majority's conclusion that the error was plain was no different than simply finding error).

. See United States v. Wallace, 515 F.3d 327, 332 (4th Cir.2008); United States v. Muniz, 60 F.3d 65, 67 (2d Cir.1995) (“A convicted defendant who fails to raise the issue of insufficient evidence in the trial court cannot prevail on that ground on appeal unless it was plain error for the trial court not to dismiss on its own motion.”), rev’d on reconsideration, on other grounds, 184 F.3d 114 (2d Cir.1997); id. at 73-74 (Kearse, J., dissenting) ("I am not aware of any case in which we have found the evidence insufficient to establish guilt beyond a reasonable doubt and yet have refused to find that error “plain” and reversible.”) (citing United States v. Gjurashaj, 706 F.2d 395, 399 n. 6 (2d Cir.1983); United States v. Kaplan, 586 F.2d 980, 982 n. 4 (2d Cir.1978)); United States v. Golomb, 811 F.2d 787, 793 (2d Cir.1987) ("It has ... been held that the government’s failure to prove an element of the offense is plain error.”) (citing Strickland, 339 F.2d at 868); see also United States v. Draper, 553 F.3d 174, 181 (2d Cir.2009) (Sotomayor, J.) ("[T]he ‘failure by the [gjovernment to adduce sufficient evidence ... is a defect affecting substantial rights which we may notice under F.R.Cr.P. 52(b).’ ” (second and third alterations in original) (quoting Kaplan, 586 F.2d at 982 n. 4)).

. See United States v. Barrington, 648 F.3d 1178, 1192 (11th Cir.2011) ("In sum, the evidence was sufficient to support Barrington’s convictions for aggravated identity theft. There is no plain error.”), cert. denied, 181 U.S. 781, 132 S.Ct. 1066, 181 L.Ed.2d 781 (2012).

. See United States v. Laury, 49 F.3d 145, 151 n. 15 (5th Cir.1995) ("In a recent decision, this Court questioned whether the 'miscarriage of justice’ standard is distinguishable from the 'sufficiency of evidence’ standard employed if a defendant does make a motion for acquittal at the conclusion of the trial.”) (citing United States v. Pennington, 20 F.3d 593, 597 n. 2 (5th Cir.1994)); see also United States v. Meadows, 91 F.3d 851, 855 n. 6 (7th Cir.1996) ("The Fifth Circuit has questioned whether this plain error standard is distinguishable from the sufficiency of the evidence standard employed if the defendant does make a proper motion for acquittal to the district court.” (citing Laury, 49 F.3d at 151 n. 15)).

. See Pennington, 20 F.3d at 597 n. 2 (“The government claims that because the motion for acquittal was not renewed after the close of the defendants' cases, the failure to grant a motion for acquittal should be reviewed under the plain error standard. Pennington responds by noting that the standard should be the same, regardless of whether the motion is renewed or made at all, because a conviction on insufficient evidence is necessarily a miscarriage of justice under the plain error standard. The government eventually concedes that the standards are indistinguishable, citing United States v. Davis, 583 F.2d 190, 199 (5th Cir. 1978) (Clark, J., concurring).” (citation omitted)).

. See 2 Steven Alan Childress & Martha S. Davis, Federal Standards of Review § 9.12, at 9-37 to -38 (4th ed. 2010) (“[Tjhere really is no difference as to the theoretical level of review exercised by the courts [for preserved or forfeited sufficiency claims.] [N]or should there be any difference constitutionally ... because it would appear to be an error amounting to a due process violation to allow conviction on anything less than [sufficient] evidence....” (footnote omitted)); 2A Wright & Henning, supra § 469, at 394 ("The language used by the courts suggests an exacting standard is applied before evidence is reviewed in the absence of a proper motion, but it may be doubted whether this is the case. Under Rule 52(b) the appellate court is permitted to notice ‘plain errors or defects affecting substantial rights.’ The Supreme Court said years ago that ‘it is the imperative duty of a court to see that all the elements of his crime are proved, or at least that testimony is offered which justifies a jury in finding those elements.’ The insufficiency of the evidence was said to require reversal because ‘a plain error has been committed in a matter so vital to the defendant.' ” (quoting Clyatt, 197 U.S. at 222, 25 S.Ct. 429)).

. Accord. United States v. Archer, 671 F.3d 149, 2011 WL 4360013, at *7 (2d Cir. Sept.20, 2011) (“The government must ... show more than evidence of a general cognizance of criminal activity, suspicious circumstances, or mere association with others engaged in criminal activity.” (internal quotation marks omitted)); United States v. Irvin, 656 F.3d 1151, 1171 (10th Cir.2011) (“While the jury may draw reasonable inferences from direct or circumstantial evidence, an inference must be more than speculation and conjecture to be reasonable, and caution must be taken that the conviction not be obtained by piling inference on inference.” (internal quotation marks omitted)); United States v. Friske, 640 F.3d 1288, 1291 (11th Cir.2011) (“[Wjhen the government relies on circumstantial evidence, reasonable inferences, not mere speculation, must support the conviction.” (internal quotation marks omitted)); United States v. Lovera, 590 F.3d 1095, 1109 (10th Cir.2009) ("[I]t is a bedrock promise of our criminal justice system that the evidence supporting a conviction must raise more than the mere suspicion of guilt, and the jury's inferences must be more than speculation and conjecture in order to be reasonable.” (internal quotation marks omitted)); United States v. Espinosa, 585 F.3d 418, 427 (8th Cir.2009) ("We cannot sustain a conviction based on mere suspicion or the possibility of guilt.” (internal quotations and citation omitted)); United States v. D’Amato, 39 F.3d 1249, 1256 (2d Cir.1994) (“[A] conviction based on speculation and surmise alone cannot stand.”); United States v. Kurt, 986 F.2d 309, 312 (9th Cir.1993) ("[Cjircumstantial evidence and inferences drawn from it may be sufficient to sustain a conviction. Mere suspicion or speculation, however, is insufficient.” (alteration in original) (internal quotation marks and citation omitted)).

. This is the unquestioned law in all of the ten circuits to have addressed this issue. See, e.g., United States v. Corson, 579 F.3d 804, 811 (7th Cir.2009); United States v. Paret-Ruiz, 567 F.3d 1, 6 (1st Cir.2009); United States v. Carlton, 442 F.3d 802, 811 (2d Cir. 2006); United States v. Nunez, 889 F.2d 1564, 1569 (6th Cir. 1989); United States v. Barboa, 777 F.2d 1420, 1422 & n. 1 (10th Cir.1985); United States v. Escobar de Bright, 742 F.2d 1196, 1199 (9th Cir.1984); United States v. Tombrello, 666 F.2d 485, 490 n. 3 (11th Cir. 1982); United States v. Moss, 591 F.2d 428, 434 n. 8 (8th Cir.1979); United States v. Chase, 372 F.2d 453, 459 (4th Cir.1967); Sears, 343 F.2d at 142.

. This is the law in every circuit. See, e.g., United States v. Young, 609 F.3d 348, 354-55 (4th Cir.2010); United States v. Deitz, 577 F.3d 672, 680 (6th Cir.2009); United States v. Parker, 554 F.3d 230, 234 (2d Cir.2009); United States v. Gibbs, 190 F.3d 188, 197 (3d Cir.1999); United States v. Thomas, 114 F.3d 228, 241 (D.C.Cir.1997); United States v. Santiago, 83 F.3d 20, 23-24 (1st Cir.1996); United States v. Lennick, 18 F.3d 814, 819 n. 4 (9th Cir.1994); United States v. Finch, 16 F.3d 228, 231 (8th Cir.1994); Maseratti, 1 F.3d at 336; United States v. Manzella, 791 F.2d 1263, 1265 (7th Cir.1986); United States v. Dickey, 736 F.2d 571, 583 (10th Cir.1984); United States v. Solomon, 686 F.2d 863, 876 (11th Cir. 1982).

. E.g., Direct Sales, 319 U.S. at 713, 63 S.Ct. 1265; United States v. Hicks, 368 F.3d 801, 805 (7th Cir.2004); United States v. Wyche, 65 Fed.Appx. 509, 2003 WL 1922966, at *3 (5th Cir.2003) (unpublished).

. United States v. Hawkins, 547 F.3d 66, 74 (2d Cir.2008); see also Hicks, 368 F.3d at 805; United States v. Posada-Rios, 158 F.3d 832, 860 (5th Cir. 1998); United States v. Price, 13 F.3d 711, 728 (3d Cir.1994); United States v. Hughes, 817 F.2d 268, 273 (5th Cir. 1987); United States v. Carbone, 798 F.2d 21, 27 (1st Cir.1986). But see Bass, 310 F.3d at 329 (relying on the conclusion in United States v. Ward, 37 F.3d 243, 248 (6th Cir. 1994), that “fronting of drugs and providing meeting instructions were only incidental to a buyer-seller relationship”); Ward, 37 F.3d at 248 ("Fronting cocaine, without additional elements of control, is nothing more than a variation on the traditional buyer-seller relationship.”).

. The majority says that the evidence shows that "Delgado was waiting to be paid by her buyer for the marijuana in advance of shipment.” Majority Op. 334. That unreasonable inference is addressed further infra. What is important to note here is that payment in advance of delivery is obviously different than — indeed, the opposite of — "fronting” or "sales on credit” of drugs.

. Colon, 549 F.3d at 568, 570 (citing United States, v. Sax, 39 F.3d 1380, 1385-86 (7th Cir.1994)); see also United States v. Brown, 217 F.3d 247, 255 (5th Cir.2000) (holding that the defendants were members of a conspiracy because, inter alia, they "warn[ed] each other of police activity and referr[ed] customers to each other when unable to supply customers themselves”), vacated on other grounds sub nom. Randle v. United States, 531 U.S. 1136, 121 S.Ct. 1072, 148 L.Ed.2d 950 (2001) (mem.), as recognized in Colon, 549 F.3d at 570; Posada-Rios, 158 F.3d at 860 ("[E]vidence that [a buyer] purchased some of the cocaine on consignment ... is ‘strong evidence' of membership in a conspiracy because it indicates a strong level of trust and an ongoing, mutually dependent relationship.") (quoting United States v. Rodriguez, 53 F.3d 1439, 1445 (7th Cir.1995)); United States v. Pozos, 697 F.2d 1238, 1241 (5th Cir.1983).

. See United States v. Villasenor, 894 F.2d 1422, 1426, 1429 (5th Cir.1990) (reversing conspiracy conviction where over 1000 pounds of marijuana were discovered in room with "an industrial vacuum cleaner, numerous trash bags, rolls of duct tape, and plastic self-sticking paper, which is commonly used to package marihuana,” and even though other people were present in the house); United States v. Hernandez-Palacios, 838 F.2d 1346, 1349 (5th Cir.1988) (reversing conspiracy conviction where over 1000 pounds of marijuana were found concealed in hidden compartments and sealed portions of fuel tanks of two busses, one of which defendant was riding in, and which busses the defendant said *365he owned and was in charge of; and there was evidence of at least six other potential conspirators); United States v. Sheikh, 654 F.2d 1057 (5th Cir. 1981) (evidence was insufficient to prove a conspiracy where 4.4 pounds of heroin were shipped to the defendant from Iran and there was significant evidence of potential conspirators), overruled on other grounds by United States v. Zuniga-Salinas, 952 F.2d 876 (5th Cir. 1992), as recognized in United States v. Mackay, 33 F.3d 489, 493 (5th Cir. 1994).

. Parker, 554 F.3d at 235-36 (holding that, when wholesale quantities of drugs are involved, "the liability of buyer and seller for having conspired together to transfer drugs would depend not on the seller's mere knowledge of the buyer’s intent to retransfer, but on a further showing of the seller's interest, shared with the buyer, in the success of the buyer's resale”); United States v. Rivera, 273 F.3d 751, 755 (7th Cir.2001) ("Showing that the buyer purchased a quantity larger than could be used for personal consumption ... is not enough to show conspiracy on behalf of the seller.”); United States v. Contreras, 249 F.3d 595, 600 (7th Cir.2001) (holding that evidence that the defendant bought "ten one-kilogram quantities of cocaine ... over a period of six to ten months” from the same supplier was only evidence of a buyer-seller relationship and not a conspiracy); United States v. Howard, 966 F.2d 1362, 1364 (10th Cir. 1992) ("The huge quantity of crack cocaine involved in this case permits an inference of conspiracy, but by itself this is not enough to convict defendant.”); United States v. Levario, 877 F.2d 1483, 1486 (10th Cir.1989) ("Although the massive quantity of cocaine involved here permits an inference of a conspiracy, standing alone, it is wholly insufficient to sustain a conviction."), overruled on other grounds by Gozlon-Peretz v. United States, 498 U.S. 395, 111 S.Ct. 840, 112 L.Ed.2d 919 (1991); United States v. Borelli, 336 F.2d 376, 384 (2d Cir.1964) ("A seller of narcotics in bulk surely knows that the purchasers will undertake to resell the goods over an uncertain period of time, and the circumstances may also warrant the inference that a supplier or a purchaser indicated a willingness to repeat. But a sale or a purchase scarcely constitutes a sufficient basis for inferring agreement to cooperate with the opposite parties for whatever period they continue to deal in this type of contraband, unless some such understanding is evidenced by other conduct which accompanies or supplements the transaction.”); Koch, 113 F.2d at 983 (holding that evidence was insufficient to prove a conspiracy even though "[t]he amount of the cocaine purchased [170 ounces] would, of course, indicate that it was taken not for personal consumption alone but for resale”).

. See United States v. Boidi, 568 F.3d 24, 30 (1st Cir.2009) (" 'Evidence that a buyer intends to resell the product instead of personally consuming it does not necessarily establish that the buyer has joined the seller's distribution conspiracy. This is so even if the seller is aware of the buyer's intent to resell.' ” (quoting Hawkins, 547 F.3d at 74)); Parker, 554 F.3d at 235-36 ("[I]t is often said that mere awareness on the part of the seller *366that the buyer intends to resell the drugs is not sufficient to show that the seller and the buyer share a conspiratorial intent to further the buyer's resale. This is because the seller cannot be considered to have joined a conspiracy with the buyer to advance the buyer's resale unless the seller has somehow encouraged the venture or has a stake in it — an interest in bringing about its success. The transferor’s mere knowledge of the transferee’s intent to retransfer to others, without anything more, would not show that the transferor had a stake or interest in the further transfer of the drugs.” (citations omitted)); United States v. Thomas, 150 F.3d 743, 745 (7th Cir.1998) (It was plain error not to instruct the jury on the buyer-seller rule in a case where the defendant bought cocaine for resale from the same supplier on three occasions, because "[n]one of the evidence suggests that [the seller] had any stake in [the buyer's] profits from [the resale]; all deals were cash on the barrelhead.”); Lennick, 18 F.3d at 819 (“To show a conspiracy, the government must show not only that Lennick gave drugs to other people knowing that they would further distribute them, but also that he had an agreement with these individuals to so further distribute the drugs.”); Price, 13 F.3d at 727 ("[T]hose courts that have addressed the purchase-for-redistribution issue have determined that such a purchase is not sufficient, in and of itself, to prove membership in the larger conspiracy.”).

. The majority's reliance on Barnard is misplaced because in that case, there was substantial other evidence of the defendant's involvement in the conspiracy. 553 F.2d at 393. Therefore, Barnard does not cast any doubt on the firmly-established rule that the quantity of drugs is not itself sufficient evidence of the existence of a conspiracy.