Generally, a judge deciding on a sentence within the legally allowed range can consider any facts he finds proved by a preponderance of evidence. Should a fact be excluded from that consideration because a jury has found it not proved beyond a reasonable doubt? There is no logical reason why it should, yet the practice remains controversial.
Today the U.S. Supreme Court decided not to take up the case of Jones v. United States, No. 13-10026. Justice Scalia, joined by Justices Thomas and Ginsburg (a line-up you don't see every day) dissented.
Justice Scalia's theory is that if the facts in question are needed to prevent the sentence from being "substantively unreasonable" then it becomes an effective "element of a crime." Unlike mere sentencing facts, elements must be found by juries beyond a reasonable doubt. What is "substantively unreasonable" you might well ask? Well, the Supreme Court has made a complete mess of guidelines sentencing in the wake of its awful, confused, confusing decision in the Booker case. "Substantively unreasonable" is a concept in the review of sentencing decisions by appellate courts.
I think that is stretching "elements" way too far. The underlying problem, though, is that Congress needs to overhaul federal sentencing to deal with Booker, and it hasn't done it.
Returning to mandatory guidelines, with simpler essential facts found by juries, is the way to go, in my opinion.
P.S.: Looks like Bill and I were writing on this at the same time. I'll leave them both up, so readers get two perspectives on the case.