Xylazine in Federal Drug Cases: The New Enhancement Exposure.

While the research examined does not provide any reference to a federal statute known as the “Xylazine Act,” this does not have the impact that one might expect. As a matter of fact, there is no indication of a xylazine-specific federal sentencing enhancement. This is simply because xylazine is not (as of the time of this writing) a federally scheduled controlled substance. The drug used in veterinary medicine to calm or sedate animals is not on the DEA schedule, and this may, at first glance, seem to be a positive for defendants facing drug trafficking charges.

However, the fact that xylazine does not, in itself, violate federal law does not protect individuals from prosecution in cases that involve the distribution of xylazine and a federally controlled substance. While xylazine itself is not scheduled, opioid-based adulterants such as heroin and fentanyl are controlled substances under the Controlled Substances Act. As a result, the mere presence of xylazine in addition to controlled substances is not a limiting factor in federal prosecutions. Even if it were the sole adulterant in an opioid mixture, the underlying federal criminal charges for trafficking controlled substances would still apply.

Despite the fact that Pennsylvania has formally scheduled xylazine (adding it to Schedule III), this creates no federal exposure. While state-level classification helps state enforcement efforts, it does not impact federal sentencing or federal law enforcement under the federal Controlled Substances Act. A state’s decision to classify a drug as controlled is legally distinct from the federal government’s decision to do so.

To illustrate, if a person is indicted for the unlawful possession or distribution of a controlled substance mixture containing both fentanyl and xylazine, the quantity used to calculate the sentencing guidelines would be the weight of the mixture containing fentanyl. Xylazine would be viewed as an additive or a “cutting agent,” with sentencing governed by the applicable mixture-weight rules under USSG §2D1.1.

The drug’s presence would not, in and of itself, trigger any separate federal enhancement under the current law, but prosecution would still proceed based on the weight of the mixture containing fentanyl.

Accordingly, while the addition of xylazine to a mixture of opioids will increase a defendant’s exposure by potentially helping to establish the factors of conspiracy, quantity, and causing death, there is no federal sentencing enhancement for the mere presence of xylazine itself.

Which Federal Charges Can Arise When a Controlled Opioid Contains Xylazine?

Under federal drug laws, criminal charges can be brought when a mixture involving both opioids and xylazine is deemed to be possessed or distributed without proper authorization. Depending on the specific drug involved and the circumstances involved, these charges can include:

Conspiracy Charges

Federal criminal charges for conspiracy to distribute controlled substances can be brought against individuals regardless of whether the drug involved contains xylazine. The presence of xylazine in opioids can also provide evidence of conspiracy, as the use of xylazine in opioid mixtures may be intended to enhance the perceived potency or efficacy of the drug. These factors, such as deception of the end-user, can further substantiate charges for conspiracy to distribute controlled substances.

Death-Resulting Charges

If a mixture involving both an opioid and xylazine is involved in an overdose that results in a fatality, then federal prosecutors may seek to establish the death-resulting penalty enhancement. While xylazine may be an exacerbating factor for the fatal overdose, it is the presence of the controlled opioid that triggers the charges. In such cases, evidence of the mixture’s contents and purity can increase a defendant’s criminal exposure.

Possessing or Distributing Fentanyl

Xylazine is not federally scheduled, so its presence cannot, in and of itself, create federal liability. This means that if a person is caught with fentanyl-xylazine mixtures, the fentanyl is the primary reason for the federal exposure. The presence of xylazine does not grant immunity from federal drug charges for possession or distribution.

Possessing or Distributing Heroin

The fact that xylazine is an adulterant for heroin does not eliminate the federal criminal liability for possessing or distributing the heroin. The presence of a non-controlled substance in a mixture of controlled substances, even if the non-controlled substance is suspected of playing a role in a fatality, is not a defense to the distribution charges.

Possessing or Distributing the “Zylexin” Adulterated Mixture

If a person is caught with an adulterated fentanyl-xylazine mixture, the federal criminal liability comes from the fentanyl in the mixture. As xylazine is not a federally controlled substance, criminal liability cannot be attributed to the xylazine.

Federal Sentencing Exposure

Federal criminal liability is separate from federal sentencing exposure. In the federal system, sentencing exposure is generally determined by a calculation under the United States Sentencing Guidelines (USSG). However, federal exposure can also arise from the maximum statutory penalties available to prosecutors. For example, if a person is charged with possessing fentanyl mixed with xylazine, the quantity used for sentencing calculations would be the weight of the mixture containing fentanyl. If the mixture consists of 1 kilogram of “Zylexin” but only contains 1 gram of fentanyl, the individual is facing exposure for the entire 1-kilogram mixture. The presence of xylazine itself does not alter the sentencing guidelines unless the charges include other factors.

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How Should Xylazine Prevalence and Overdose Figures Be Read?

These statistics are valuable not because they inform prosecutors’ strategies for sentencing, rather, these statistics serve as compelling narratives when a prosecutor is arguing for a sentence enhancement. For example, prosecutors can readily cite the study conducted by UNC researchers who, in early 2024, reported finding xylazine in samples sent to their laboratory in fentanyl-related drug overdose cases. Fentanyl, which is itself adulterated with xylazine, was present in samples across 15 states. These samples had been collected by harm-reduction and syringe-service programs as part of a broader study, which highlights the prevalence of the adulterated drug in the U.S. market. This prevalence is further underscored by the Philadelphia overdose report, noting that overdoses involving xylazine were present in more than one-third of the city’s overdose deaths among narcotic combined drugs during 2022. Importantly, the Philadelphia Medical Examiner’s Office found that overdose cases that were adulterated involved fentanyl almost universally. This suggests that adulterated fentanyl remains a major public health risk in Philadelphia.

A state-level overdose report for Vermont confirms xylazine’s presence in 12.5% oftested cases during 2021, exhibiting an upward trend over the previous year. These findings illustrate how federal prosecutors can build their narrative around a public health crisis, argue for the utmost protection of the community, and potentially justify more severe penalties and sentencing enhancements under the excuse of “saving lives.”

When a prosecutor’s case depends on the presence of xylazine in the controlled opioid mixture for establishing quantity or creating a conspiracy charge, these statistics are incredibly valuable. And when federal sentencing exposures depend on the controlled opioid’s quantity or existence, prosecutors will try to maximize a defendant’s exposure by relying on the severity of the public health crisis. In light of the high overdose rates, prosecution strategies will continue to favor prosecutors over defense teams unless the defense teams have the right tools and strategies.

What Do Current Federal Plans and State Classifications Change Today?

In July 2023, the White House Office of National Drug Control Policy announced a federal response plan targeting the rise of xylazine. This plan focuses on “The SUPPORT Act requires that an emerging threat response plan include evidence-based prevention, treatment, and supply reduction action steps, in addition to establishing goals and performance measures informed by comprehensive data.” Crucially, the plan mentions considering whether xylazine should be classified as a controlled substance. While this does not change the current federal status of xylazine, which remains unscheduled, it signals a federal interest in controlling the drug’s availability and production going forward.

At the state level, the response has already been a bit more comprehensive. Several states have moved to classify xylazine as a controlled substance under state law, including Florida, Pennsylvania, West Virginia, South Dakota, and Ohio. For example, Pennsylvania added xylazine to its Schedule III controlled substances list, which allows state-level prosecutions for possession and distribution without the need for federal DEA schedules.

Additionally, New Jersey has introduced legislation, Assembly Bill 5448, which proposes classifying xylazine as a Schedule III substance. This represents a significant legislative step, although any potential federal consequences would still require action by the DEA and the U.S. Department of Justice.

For individuals facing federal investigation, these developments demonstrate why a comprehensive and holistic defense strategy is essential. While the federal government has not yet added xylazine to its schedule, the shift toward state-level enforcement and potential future federal action indicates that the government is increasingly treating xylazine with the same seriousness as the opioid adulterants it targets.

In the federal system, prosecutors can already achieve severe penalties by leveraging the controlled opioid content in mixtures that include xylazine. State classifications do not change this reality, but they illustrate the broader environment of enforcement and the intent of authorities. Therefore, navigating federal exposure in the era of “Zylexin” and adulterated opioids requires a thorough understanding of both state and federal law to effectively challenge the government’s narrative and minimize sentencing risk.

Speak With a Federal Defense Lawyer

If you are dealing with any part of what this article describes, the next step is a conversation with a lawyer who handles these cases. Spodek Law Group is a second generation criminal defense firm practicing since 1976, representing clients nationwide from offices in New York, Brooklyn, Queens and Los Angeles. Call 888 348 8028 to speak with our team.