                                NONPRECEDENTIAL DISPOSITION
                         To be cited only in accordance with Fed. R. App. P. 32.1




                    United States Court of Appeals
                                   For the Seventh Circuit
                                   Chicago, Illinois 60604
                                   Submitted January 3, 2018*
                                    Decided January 3, 2018



                                              Before

                               WILLIAM J. BAUER, Circuit Judge

                               FRANK H. EASTERBROOK, Circuit Judge

                               DIANE S. SYKES, Circuit Judge



No. 16-4191                                                      Appeal from the United
                                                                 States District Court for the
JOHN J. SULLIVAN,                                                Northern District of Illinois,
       Petitioner-Appellant,
                                                                 Eastern Division.
               v.
                                                                 No. 15 C 7521
UNITED STATES OF AMERICA,                                        Rubén Castillo, Chief Judge.
      Respondent-Appellee.


                                               Order

   John Sullivan and his brother Daniel were convicted of wire fraud in connection
with their jointly managed home-remodeling business. We affirmed their convictions,
United States v. Sullivan, 765 F.3d 712 (7th Cir. 2014), and last month affirmed the district
court’s order denying Daniel’s petition for collateral relief under 28 U.S.C. §2255. Sulli-




   * After examining the briefs and the record, we have concluded that oral argument is unnecessary.
See Fed. R. App. P. 34(a); Cir. R. 34(f).
No. 16-4191                                                                            Page 2

van v. United States, 877 F.3d 337 (7th Cir. 2017). John filed his own §2255 petition, lost,
and appeals. We affirm for the reasons given in Daniel’s case plus those below.

    Daniel presented two issues, one concerning jury selection and the other concerning
sentencing. John presents only an issue about sentencing. Both Sullivans contend that
their lawyers furnished ineffective assistance by not gathering and presenting addition-
al evidence that might have persuaded the district judge to reduce his estimate of in-
tended loss below $400,000, which would have cut two offense levels from the Guide-
lines calculation. The district judge estimated loss at $750,000, which both Daniel and
John contend is too high. Daniel lost because he did not produce evidence showing that
a different strategy could have done better than counsel’s actual strategy, which con-
sisted in challenging the prosecutor’s proof and urging the district judge to make a con-
servative estimate (which the judge said he did). We observed that Daniel had not pre-
sented new evidence, such as an expert’s affidavit, tending to show that more or differ-
ent proof at sentencing could have reduced the loss below $400,000. There was therefore
no reason to hold a hearing to inquire into counsel’s strategy.

     John, like Daniel, presents as his principal appellate argument a contention that the
district judge should have held a hearing to examine counsel’s strategy. John, like Dan-
iel, did not present an affidavit from an expert, or another lawyer, that would outline
evidence or any plausible strategy that would lead to an estimate below $400,000. We
therefore asked John and the United States to file memoranda addressing whether his
appeal should be summarily affirmed on the authority of the decision on Daniel’s ap-
peal. The United States supported summary affirmance, while John contended that the
brothers’ positions are distinguishable.

    Instead of presenting new evidence that counsel might have found and marshaled at
sentencing, John offers his own calculation based on the existing record plus his memo-
ries. John contends that the business paid more to subcontractors than the record re-
flects and that the victims’ loss is correspondingly less. Yet there’s little evidence that
the business did pay this amount (John’s calculations substantially depend on extra-
record recollections), and more important John is trying to estimate the wrong thing—
how much the brothers’ firm made as (illicit) profit rather than how much the custom-
ers lost. There’s no apparent basis for equating the two and correspondingly no basis
for distinguishing one brother’s situation from the other’s.

                                                                                    AFFIRMED
