21 U.S.C. § 860 — Distribution or manufacturing in or near

Page 866 TITLE 21—FOOD AND DRUGS § 860 1984—Subsecs. (a), (b). Pub. L. 98–473, § 503(b)(3), sub- stituted ‘‘Except as provided in section 845a of this title, any’’ for ‘‘Any’’. Pub. L. 98–473, § 224(b), which directed amendment of this section effective Nov. 1, 1987 (see section 235(a)(1) of Pub. L. 98–473 set out as an Effective Date note under section 3551 of Title 18, Crimes and Criminal Procedure) was repealed by Pub. L. 99–570, § 1005(b)(1). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1986 AMENDMENT Amendment by section 1004(a) of Pub. L. 99–570 effec- tive on date of taking effect of section 3583 of Title 18, Crimes and Criminal Procedure (Nov. 1, 1987), see sec- tion 1004(b) of Pub. L. 99–570 set out as a note under sec- tion 841 of this title. EFFECTIVE DATE Section effective on first day of seventh calendar month that begins after Oct. 26, 1970, see section 704 of Pub. L. 91–513, set out as a note under section 801 of this title. § 860. Distribution or manufacturing in or near schools and colleges (a) Penalty Any person who violates section 841(a)(1) of this title or section 856 of this title by distrib- uting, possessing with intent to distribute, or manufacturing a controlled substance in or on, or within one thousand feet of, the real property comprising a public or private elementary, voca- tional, or secondary school or a public or private college, junior college, or university, or a play- ground, or housing facility owned by a public housing authority, or within 100 feet of a public or private youth center, public swimming pool, or video arcade facility, is (except as provided in subsection (b)) subject to (1) twice the maximum punishment authorized by section 841(b) of this title; and (2) at least twice any term of super- vised release authorized by section 841(b) of this title for a first offense. A fine up to twice that authorized by section 841(b) of this title may be imposed in addition to any term of imprison- ment authorized by this subsection. Except to the extent a greater minimum sentence is other- wise provided by section 841(b) of this title, a person shall be sentenced under this subsection to a term of imprisonment of not less than one year. The mandatory minimum sentencing pro- visions of this paragraph shall not apply to of- fenses involving 5 grams or less of marihuana. (b) Second offenders Any person who violates section 841(a)(1) of this title or section 856 of this title by distrib- uting, possessing with intent to distribute, or manufacturing a controlled substance in or on, or within one thousand feet of, the real property comprising a public or private elementary, voca- tional, or secondary school or a public or private college, junior college, or university, or a play- ground, or housing facility owned by a public housing authority, or within 100 feet of a public or private youth center, public swimming pool, or video arcade facility, after a prior conviction under subsection (a) has become final is punish- able (1) by the greater of (A) a term of imprison- ment of not less than three years and not more than life imprisonment or (B) three times the maximum punishment authorized by section 841(b) of this title for a first offense, and (2) at least three times any term of supervised release authorized by section 841(b) of this title for a first offense. A fine up to three times that au- thorized by section 841(b) of this title may be imposed in addition to any term of imprison- ment authorized by this subsection. Except to the extent a greater minimum sentence is other- wise provided by section 841(b) of this title, a person shall be sentenced under this subsection to a term of imprisonment of not less than three years. Penalties for third and subsequent con- victions shall be governed by section 841(b)(1)(A) of this title. (c) Employing children to distribute drugs near schools or playgrounds Notwithstanding any other law, any person at least 21 years of age who knowingly and inten- tionally— (1) employs, hires, uses, persuades, induces, entices, or coerces a person under 18 years of age to violate this section; or (2) employs, hires, uses, persuades, induces, entices, or coerces a person under 18 years of age to assist in avoiding detection or appre- hension for any offense under this section by any Federal, State, or local law enforcement official, is punishable by a term of imprisonment, a fine, or both, up to triple those authorized by section 841 of this title. (d) Suspension of sentence; probation; parole In the case of any mandatory minimum sen- tence imposed under this section, imposition or execution of such sentence shall not be sus- pended and probation shall not be granted. An individual convicted under this section shall not be eligible for parole until the individual has served the mandatory minimum term of impris- onment as provided by this section. (e) Definitions For the purposes of this section— (1) The term ‘‘playground’’ means any out- door facility (including any parking lot appur- tenant thereto) intended for recreation, open to the public, and with any portion thereof containing three or more separate apparatus intended for the recreation of children includ- ing, but not limited to, sliding boards, swingsets, and teeterboards. (2) The term ‘‘youth center’’ means any rec- reational facility and/or gymnasium (includ- ing any parking lot appurtenant thereto), in- tended primarily for use by persons under 18 years of age, which regularly provides ath- letic, civic, or cultural activities. (3) The term ‘‘video arcade facility’’ means any facility, legally accessible to persons under 18 years of age, intended primarily for the use of pinball and video machines for amusement containing a minimum of ten pin- ball and/or video machines. (4) The term ‘‘swimming pool’’ includes any parking lot appurtenant thereto. (Pub. L. 91–513, title II, § 419, formerly § 405A, as added Pub. L. 98–473, title II, § 503(a), Oct. 12, 1984, 98 Stat. 2069; amended Pub. L. 99–570, title I, §§ 1004(a), 1104, 1105(c), 1841(b), 1866(b), (c), Oct. Page 867 TITLE 21—FOOD AND DRUGS § 860 27, 1986, 100 Stat. 3207–6, 3207–11, 3207–52, 3207–55; Pub. L. 99–646, § 28, Nov. 10, 1986, 100 Stat. 3598; Pub. L. 100–690, title VI, §§ 6452(b)(1), 6457, 6458, Nov. 18, 1988, 102 Stat. 4371, 4373; renumbered § 419 and amended Pub. L. 101–647, title X, §§ 1002(b), 1003(b), title XII, § 1214, title XV, § 1502, title XXXV, § 3599L, Nov. 29, 1990, 104 Stat. 4827, 4829, 4833, 4836, 4932; Pub. L. 103–322, title XIV, § 140006, title XXXII, § 320107, title XXXIII, § 330009(a), Sept. 13, 1994, 108 Stat. 2032, 2111, 2143.) Editorial Notes CODIFICATION Section was classified to section 845a of this title prior to renumbering by Pub. L. 101–647. AMENDMENTS 1994—Subsec. (a). Pub. L. 103–322, § 320107, substituted ‘‘playground, or housing facility owned by a public housing authority, or within’’ for ‘‘playground, or with- in’’. Subsec. (b). Pub. L. 103–322, §§ 320107, 330009(a), sub- stituted ‘‘playground, or housing facility owned by a public housing authority, or within’’ for ‘‘playground, or within’’ and inserted a period at end of penultimate sentence. Subsecs. (c) to (e). Pub. L. 103–322, § 140006, added sub- sec. (c) and redesignated former subsecs. (c) and (d) as (d) and (e), respectively. 1990—Subsec. (a). Pub. L. 101–647, § 1502(1), inserted ‘‘or a playground,’’ after ‘‘university,’’ and struck out ‘‘playground,’’ after ‘‘within 100 feet of a’’. Pub. L. 101–647, § 1214(1)(C), substituted ‘‘a person shall be sentenced under this subsection to a term of imprisonment of not less than one year’’ for ‘‘a term of imprisonment under this subsection shall be not less than one year’’. Pub. L. 101–647, § 1214(1)(B), inserted ‘‘A fine up to twice that authorized by section 841(b) of this title may be imposed in addition to any term of imprisonment authorized by this subsection.’’ Pub. L. 101–647, § 1214(1)(A), which directed the amend- ment of par. (1) by striking out ‘‘, or a fine, or both,’’ could not be executed because those words did not ap- pear. See note below. Pub. L. 101–647, § 1003(b)(1), which directed the substi- tution of ‘‘subject to (1) twice the maximum punish- ment authorized by section 841(b) of this title’’ for ‘‘punishable (1) by a term of imprisonment, or a fine, or both, up to twice that authorized by section 841(b) of this title’’, was executed by making the substitution for ‘‘punishable (1) by a term of imprisonment, or fine, or both, up to twice that authorized by section 841(b) of this title’’ to reflect the probable intent of Congress. Subsec. (b). Pub. L. 101–647, § 3599L, substituted ‘‘has become final’’ for ‘‘have become final’’. Pub. L. 101–647, § 1502(2), inserted ‘‘or a playground,’’ after ‘‘university,’’ and struck out ‘‘playground,’’ after ‘‘within 100 feet of a’’. Pub. L. 101–647, § 1214(2)(B), inserted after first sen- tence ‘‘A fine up to three times that authorized by sec- tion 841(b) of this title may be imposed in addition to any term of imprisonment authorized by this sub- section. Except to the extent a greater minimum sen- tence is otherwise provided by section 841(b) of this title, a person shall be sentenced under this subsection to a term of imprisonment of not less than three years’’. Subsec. (b)(1)(B). Pub. L. 101–647, § 1214(2)(A), which directed the amendment of subpar. (B) by striking ‘‘, or a fine up to three times that’’ through ‘‘or both’’, could not be executed because the language did not appear after execution of the intervening amendment by Pub. L. 101–647, § 1003(b)(2). See below. Pub. L. 101–647, § 1003(b)(2), substituted ‘‘three times the maximum punishment authorized by section 841(b) of this title for a first offense’’ for ‘‘a term of imprison- ment of up to three times that authorized by section 841(b) of this title for a first offense, or a fine up to three times that authorized by section 841(b) of this title for a first offense, or both’’. Subsec. (c). Pub. L. 101–647, § 1214(3), inserted ‘‘manda- tory minimum’’ after ‘‘In the case of any’’, struck out ‘‘subsection (b)’’ after ‘‘imposed under’’, struck out ‘‘of’’ before ‘‘this section’’ in a reference to ‘‘of this sec- tion’’ which was editorially added before ‘‘, imposition or’’, and substituted ‘‘An individual convicted under this section shall not be eligible for parole until the in- dividual has served the mandatory minimum term of imprisonment as provided by this section’’ for ‘‘An in- dividual convicted under subsection (b) of this section shall not be eligible for parole under chapter 311 of title 18 until the individual has served the minimum sen- tence required by such subsection’’. 1988—Subsec. (a). Pub. L. 100–690, §§ 6457, 6458(a), in- serted ‘‘, possessing with intent to distribute,’’ after ‘‘distributing’’ and ‘‘, or within 100 feet of a play- ground, public or private youth center, public swim- ming pool, or video arcade facility,’’ after ‘‘univer- sity’’. Subsec. (b). Pub. L. 100–690, §§ 6452(b)(1), 6457, 6458(a), inserted ‘‘, possessing with intent to distribute,’’ after ‘‘distributing’’, and ‘‘, or within 100 feet of a play- ground, public or private youth center, public swim- ming pool, or video arcade facility,’’ after ‘‘univer- sity’’, substituted ‘‘a prior conviction’’ for ‘‘a prior con- viction or convictions’’, and inserted at end ‘‘Penalties for third and subsequent convictions shall be governed by section 841(b)(1)(A) of this title.’’ Subsec. (d). Pub. L. 100–690, § 6458(b), added subsec. (d). 1986—Subsec. (a). Pub. L. 99–570, §§ 1104(a), (b), 1105(c), 1841(b)(1), inserted ‘‘or section 856 of this title’’ and ‘‘or manufacturing’’, substituted ‘‘a public or private ele- mentary, vocational, or secondary school or a public or private college, junior college, or university’’ for ‘‘a public or private elementary or secondary school’’, struck out ‘‘involving the same controlled substance and schedule’’ after ‘‘for a first offense’’, and inserted ‘‘Except to the extent a greater minimum sentence is otherwise provided by section 841(b) of this title, a term of imprisonment under this subsection shall be not less than one year. The mandatory minimum sentencing provisions of this paragraph shall not apply to offenses involving 5 grams or less of marihuana.’’ Pub. L. 99–570, § 1004(a), substituted ‘‘term of super- vised release’’ for ‘‘special parole term’’. Subsec. (b). Pub. L. 99–646 which directed that ‘‘pa- role’’ be inserted after ‘‘(2) at least three times any spe- cial’’ could not be executed in view of prior amendment by Pub. L. 99–570, § 1104(c) below. Pub. L. 99–570, § 1866(b), which directed that ‘‘term of supervised release’’ be substituted for ‘‘special term’’ could not be executed in view of prior amendment by Pub. L. 99–570, § 1104(c) below. Pub. L. 99–570, §§ 1104(a), 1841(b)(2), inserted reference to section 856 of this title, inserted ‘‘or manufacturing’’ after ‘‘distributing’’ and substituted ‘‘a public or pri- vate elementary, vocational, or secondary school or a public or private college, junior college, or university’’ for ‘‘a public or private elementary or secondary school’’. Pub. L. 99–570, § 1104(c), amended cls. (1) and (2) gen- erally. Prior to amendment, cls. (1) and (2) read as fol- lows: ‘‘(1) by a term of imprisonment of not less than three years and not more than life imprisonment and (2) at least three times any special term authorized by section 841(b) of this title for a second or subsequent of- fense involving the same controlled substance and schedule.’’ Subsec. (c). Pub. L. 99–570, § 1866(c), substituted ref- erence to chapter 311 of title 18 for reference to section 4202 of that title. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1986 AMENDMENT Amendment by section 1004(a) of Pub. L. 99–570 effec- tive on date of taking effect of section 3583 of Title 18, Page 868 TITLE 21—FOOD AND DRUGS § 860a 1 So in original. Probably should be followed by a dash. 2 See References in Text note below. Crimes and Criminal Procedure (Nov. 1, 1987), see sec- tion 1004(b) of Pub. L. 99–570 set out as a note under sec- tion 841 of this title. § 860a. Consecutive sentence for manufacturing or distributing, or possessing with intent to manufacture or distribute, methamphet- amine on premises where children are present or reside Whoever violates section 841(a)(1) of this title by manufacturing or distributing, or possessing with intent to manufacture or distribute, meth- amphetamine or its salts, isomers or salts of iso- mers on premises in which an individual who is under the age of 18 years is present or resides, shall, in addition to any other sentence imposed, be imprisoned for a period of any term of years but not more than 20 years, subject to a fine, or both. (Pub. L. 91–513, title II, § 419a, as added Pub. L. 109–177, title VII, § 734(a), Mar. 9, 2006, 120 Stat. 270.) § 861. Employment or use of persons under 18 years of age in drug operations (a) Unlawful acts It shall be unlawful for any person at least eighteen years of age to knowingly and inten- tionally— (1) employ, hire, use, persuade, induce, en- tice, or coerce, a person under eighteen years of age to violate any provision of this sub- chapter or subchapter II; (2) employ, hire, use, persuade, induce, en- tice, or coerce, a person under eighteen years of age to assist in avoiding detection or appre- hension for any offense of this subchapter or subchapter II by any Federal, State, or local law enforcement official; or (3) receive a controlled substance from a per- son under 18 years of age, other than an imme- diate family member, in violation of this sub- chapter or subchapter II. (b) Penalty for first offense Any person who violates subsection (a) is sub- ject to twice the maximum punishment other- wise authorized and at least twice any term of supervised release otherwise authorized for a first offense. Except to the extent a greater min- imum sentence is otherwise provided, a term of imprisonment under this subsection shall not be less than one year. (c) Penalty for subsequent offenses Any person who violates subsection (a) after a prior conviction under subsection (a) of this sec- tion has become final, is subject to three times the maximum punishment otherwise authorized and at least three times any term of supervised release otherwise authorized for a first offense. Except to the extent a greater minimum sen- tence is otherwise provided, a term of imprison- ment under this subsection shall not be less than one year. Penalties for third and subse- quent convictions shall be governed by section 841(b)(1)(A) of this title. (d) Penalty for providing or distributing con- trolled substance to underage person Any person who violates subsection (a)(1) or (2) 1 (1) by knowingly providing or distributing a controlled substance or a controlled substance analogue to any person under eighteen years of age; or (2) if the person employed, hired, or used is fourteen years of age or younger, shall be subject to a term of imprisonment for not more than five years or a fine of not more than $50,000, or both, in addition to any other punishment authorized by this section. (e) Suspension of sentence; probation; parole In any case of any sentence imposed under this section, imposition or execution of such sen- tence shall not be suspended and probation shall not be granted. An individual convicted under this section of an offense for which a mandatory minimum term of imprisonment is applicable shall not be eligible for parole under section 4202 of title 18 2 until the individual has served the mandatory term of imprisonment as enhanced by this section. (f) Distribution of controlled substance to preg- nant individual Except as authorized by this subchapter, it shall be unlawful for any person to knowingly or intentionally provide or distribute any con- trolled substance to a pregnant individual in violation of any provision of this subchapter. Any person who violates this subsection shall be subject to the provisions of subsections (b), (c), and (e). (Pub. L. 91–513, title II, § 420, formerly § 405B, as added Pub. L. 99–570, title I, § 1102, Oct. 27, 1986, 100 Stat. 3207–10; amended Pub. L. 100–690, title VI, §§ 6452(b)(1), 6459, 6470(d), Nov. 18, 1988, 102 Stat. 4371, 4373, 4378; renumbered § 420 and amended Pub. L. 101–647, title X, §§ 1002(c), 1003(c), title XXXV, § 3599L, Nov. 29, 1990, 104 Stat. 4827, 4829, 4932.) Editorial Notes REFERENCES IN TEXT Section 4202 of title 18, referred to in subsec. (e), which, as originally enacted in Title 18, Crimes and Criminal Procedure, related to eligibility of prisoners for parole, was repealed and a new section 4202 enacted as part of the repeal and enactment of a new chapter 311 (§ 4201 et seq.) of Title 18, by Pub. L. 94–233, § 2, Mar. 15, 1976, 90 Stat. 219. For provisions relating to the eli- gibility of prisoners for parole, see section 4205 of Title 18. Pub. L. 98–473, title II, §§ 218(a)(5), 235(a)(1), (b)(1), Oct. 12, 1984, 98 Stat. 2027, 2031, 2032, as amended, pro- vided that, effective on the first day of the first cal- endar month beginning 36 months after Oct. 12, 1984 (Nov. 1, 1987), chapter 311 of Title 18 is repealed, subject to remaining effective for five years after Nov. 1, 1987, in certain circumstances. See Effective Date note set out under section 3551 of Title 18. CODIFICATION Section was classified to section 845b of this title prior to renumbering by Pub. L. 101–647.