21 U.S.C. § 861

Employment or use of persons under 18 years of age in drug operations

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(a) Unlawful actsIt shall be unlawful for any person at least eighteen years of age to knowingly and intentionally—(1) employ, hire, use, persuade, induce, entice, or coerce, a person under eighteen years of age to violate any provision of this subchapter or subchapter II;(2) employ, hire, use, persuade, induce, entice, or coerce, a person under eighteen years of age to assist in avoiding detection or apprehension 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 person under 18 years of age, other than an immediate family member, in violation of this subchapter or subchapter II.(b) Penalty for first offense

Any person who violates subsection (a) is subject to twice the maximum punishment otherwise authorized and at least twice any term of supervised release otherwise authorized for a first offense. Except to the extent a greater minimum sentence is otherwise provided, a term of imprisonment under this subsection shall not be less than one year.

Any person who violates subsection (a) after a prior conviction under subsection (a) of this section 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 sentence is otherwise provided, a term of imprisonment under this subsection shall not be less than one year. Penalties for third and subsequent convictions shall be governed by section 841(b)(1)(A) of this title.

(d) Penalty for providing or distributing controlled substance to underage personAny person who violates subsection (a)(1) or (2) 11 So in original. Probably should be followed by a dash.(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 sentence 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 22 See References in Text note below. until the individual has served the mandatory term of imprisonment as enhanced by this section.

(f) Distribution of controlled substance to pregnant individual

Except as authorized by this subchapter, it shall be unlawful for any person to knowingly or intentionally provide or distribute any controlled 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 NotesReferences 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 eligibility 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, provided that, effective on the first day of the first calendar 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.

Amendments

1990—Subsec. (b). Pub. L. 101–647, § 1003(c)(1), which directed the substitution of “is subject to twice the maximum punishment otherwise authorized” for “is punishable by a term of imprisonment up to twice that authorized, or up to twice the fine authorized, or both,” was executed by making the substitution for “is punishable by a term of imprisonment up to twice that otherwise authorized, or up to twice the fine otherwise authorized, or both,” to reflect the probable intent of Congress.

Subsec. (c). Pub. L. 101–647, § 3599L, substituted “has become final” for “have become final”.

Pub. L. 101–647, § 1003(c)(2), which directed the substitution of “is subject to three times the maximum punishment otherwise authorized” for “is punishable by a term of imprisonment up to three times that authorized, or up to three times the fine authorized, or both,” was executed by making the substitution for “is punishable by a term of imprisonment up to three times that otherwise authorized, or up to three times the fine otherwise authorized, or both,” to reflect the probable intent of Congress.

1988—Subsec. (a)(3). Pub. L. 100–690, § 6459, added par. (3).

Subsec. (c). Pub. L. 100–690, § 6452(b)(1), struck out “or convictions” after “a prior conviction” and inserted at end “Penalties for third and subsequent convictions shall be governed by section 841(b)(1)(A) of this title.”

Subsec. (e). Pub. L. 100–690, § 6470(d), struck out “required by section 841(b) of this title” after “mandatory term of imprisonment”.

Notes of Decisions

Cited in 167 cases (9 in the last 5 years), 1991–2024 · leading case: Rehaif v. United States, 139 S. Ct. 2191 (2019).

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Rehaif v. United States, 139 S. Ct. 2191 (2019). · cites it 2× “21 U.S.C. § 861 (a)(2). A third applies to a "parent [or] legal guardian" who allows his child to be used for child pornography.”

United States v. Abraham Hernandez, 330 F.3d 964 (7th Cir. 2003). · cites it 6× “Counts 2 and 3 charged five of the defendants with using minors in a drug operation in violation of 21 U.S.C. § 861 . The remaining counts charged various individuals with substantive distribution offenses in viola *968 tion of 21 U.”

United States v. Bryan Burwell, 690 F.3d 500 (D.C. Cir. 2012). · cites it 8× “§ 2423 (the Mann Act) (prohibiting transportation of juveniles across state lines for the purpose of prostitution); 21 U.S.C. § 861 (criminalizing use of a juvenile to commit or conceal a drug offense)—do not require proof of mens rea with respect to the juvenile’s age.”

United States v. Villanueva-Sotelo, 515 F.3d 1234 (D.C. Cir. 2008). · cites it 6× “" 21 U.S.C. § 861 (a)(2). Again observing that the statute was "not a model of meticulous drafting," we explained that "[ o ] ne cannot tell from the words alone whether the person's juvenile status must be known .”

United States v. Llama Edmidia Alarcon Sergio Alarcon-Lopez & Ruben Alarcon-Pinon, 261 F.3d 416 (5th Cir. 2001). · cites it 6× “§ 841 (a)(1) (“count two”); and a count of using a minor to avoid detection of or apprehension for an offense in violation of 21 U.S.C. § 861 (a)(2) (“count three”). The Appellants pled not guilty to *420 all three counts, and the trial court set the case for a jury trial.”

United States v. Samuel O. White, Luis Noel Cruz, AKA Danny Cruz, 240 F.3d 127 (2d Cir. 2001). · cites it 4× “§ 860 (a) 3 (the “schoolyard counts”); and one count of use of a person under 18 to assist in the distribution of cocaine base and cocaine, in violation of 21 U.S.C. §§ 861 (a)(1) 4 and 861(a)(2) 5 .”

State v. Flores, 164 Wash. 2d 1 (Wash. 2008). · cites it 6× “Similar to Washington’s law, 21 U.S.C. § 861 (a)(1) and (2) makes it unlawful for any adult to “employ, hire, use, persuade, induce, entice, or coerce” a minor either to participate in a drug offense or “to assist in avoiding detection or apprehension” for a drug offense.”

State v. Flores, 186 P.3d 1038 (Wash. 2008). · cites it 6× “Similar to Washington's law, 21 U.S.C. § 861 (a)(1), (2) makes it unlawful for any adult to "employ, hire, use, persuade, induce, entice, or coerce" a minor to either participate in a drug offense or "to assist in avoiding detection or apprehension" for a drug offense.”

Flores-Figueroa v. United States, 556 U.S. 646 (2009). · cites it 2× “employ, hire, use, persuade, induce, entice, or coerce, a person under eighteen years of age to violate” drug laws, does not require the defendant to have knowledge of the Cite as: 556 U. S. ____ (2009) 3 Opinion of ALITO, J.”

United States v. Polizzi, 549 F. Supp. 2d 308 (E.D.N.Y 2008). · cites it 5× “§ 860 (b) Third offense; distribution of a controlled substance near’ a school or similar facility Mandatory minimum term of imprisonment specified at section 841(b)(1)(A) 21 U.S.C. § 861 (a) Employment or use of persons under 18 years of age in drug operations Mandatory minimum…”

United States v. Louis Zayas, 32 F.4th 211 (3rd Cir. 2022). · cites it 6× “3 controlled substance to a pregnant individual in violation of 21 U.S.C. §§ 861 (f), 841(a)(1) and (b)(1)(C), and 18 U.”

United States v. Harris, 258 F. Supp. 3d 137 (D.D.C. 2017). · cites it 3× “§ 845b, recodified at 21 U.S.C. § 861 . 4 Violation of this statute triggers imposition of a term of supervised release of “at least twice the term of supervised release otherwise authorized for a first offense.”

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— 21 U.S.C. § 861(a)(1) — 1 case

United States v. Corchado, 427 F.3d 815 (10th Cir. 2005).

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