60 F.3d 826

Robert Lee McCloud appeals the district court’s denial of his motion for specific performance of a plea agreement. We affirm.

* In 1991, McCloud pled guilty to conspiracy to possess with intent to distribute marijuana and cocaine, in violation of 21 U.S.C.A. Sec. 846 (West Supp.1995). Pursuant to a plea agreement, McCloud agreed to testify truthfully for the Government whenever called upon to do so. The Government agreed to make known to the court at sentencing the nature and extent of McCloud’s cooperation, “including whether the Government considers the Defendant to have substantially assisted authorities. The Government, however, is not promising to move for a departure….”

The Government did move for downward departure for substantial assistance at McCloud’s sentencing. Although the guidelines called for a sentence of between 210 and 262 months, the district court granted the Government’s motion and sentenced McCloud to 105 months imprisonment.

In 1994, McCloud’s sentence was reduced to sixty months pursuant to another motion for downward departure by the Government. McCloud then filed a pro se motion for specific performance of the plea agreement, claiming that the Government did not disclose the full nature and extent of his cooperation. The district court denied the motion, and McCloud appeals the ruling.

Upon reviewing the record, we are convinced that McCloud received the full benefit of his plea agreement. Although the Government made no specific promise to move for a downward departure in sentencing, it made two such motions, which both resulted in substantial sentence reductions. In addition, the Government informed the district court of McCloud’s cooperation. Accordingly, we affirm the district court’s denial of the motion.

We deny the Government’s Motion to Dismiss Appeal. Although the plea agreement did contain a provision waiving appeals and 28 U.S.C. Sec. 2255 (1988) proceedings, it is not clear that the waiver applies to the motion at issue. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process.

AFFIRMED.

Tyrone Kelly appeals from his convictions and sentence for (1) being a felon in possession of ammunition, in violation of 18 U.S.C.A. Secs. 922(g)(1), 924(a)(2) (West 1976 & Supp.1995); (2) being a felon in possession of a firearm, in violation of Secs. 922(g)(1), 924(a)(2); and (3) possessing a “sawed-off” shotgun, in violation of 26 U.S.C. Secs. 5861(d), 5871 (1988). Kelly also was indicted on a count of possessing a firearm with an obliterated serial number, in violation of 18 U.S.C.A. Secs. 922(k), 924(a)(1)(B) (West 1976 & Supp.1995), which was dismissed during trial. Kelly alleges several errors. We affirm.

Kelly first contends that the district court erred in denying his motion to suppress evidence. He moved below to suppress evidence found on his person during a Terry* search. The district court held a hearing on the motion. At that hearing the Government presented evidence that a police officer saw Kelly pull a sawed-off shotgun from his shirt prior to entering an abandoned car wash. When other officers, notified of this information, moved in to investigate the situation, they were fully justified in conducting the type of pat-down search authorized by Terry. The officers did no more than attempt to protect themselves from someone they believed was holding a firearm. Terry, 392 U.S. at 27. The district court did not err in denying the motion to suppress.

Kelly next contends that two counts of the indictment–counts ostensibly charging the Sec. 922(g) felon-in-possession offense and the Sec. 5861(d) sawed-off shotgun offense–were duplicitous because the counts also charged possession of a firearm with an obliterated serial number, which was the substance of Count Three. The language in the two challenged counts did no more than recite, in description of the firearm, that the firearm had an obliterated serial number. The counts clearly charged other crimes and not the crime charged explicitly in Count Three. We find that the district court properly refused to strike the descriptive language in the two counts; there was no duplicity in those counts.

Third, Kelly contends that the two Sec. 922(g)(1) convictions for being a felon in possession of a firearm and for being a felon in possession of ammunition violate the Double Jeopardy Clause. Although Kelly alleges that the possession of the firearm and the ammunition were simultaneous, there is evidence in the trial transcript that the firearm and the ammunition were acquired on different dates. That they were later possessed concurrently is immaterial. The two acquisitions support two separate convictions under Sec. 922(g)(1). Cf. United States v. Mullins, 698 F.2d 686, 687 (4th Cir.) (possession of multiple firearms acquired on different dates supports multiple Sec. 922(g)(1) convictions), cert. denied, 460 U.S. 1073 (1983).

Finally, Kelly contends that the district court erred when it sentenced him to consecutive sentences for the consolidated Sec. 922(g)(1) felon-in-possession counts and the Sec. 5861(d) possession of a sawedoff shotgun count. Kelly’s contention is without merit. United States v. Concepcion, 983 F.2d 369, 391 (2d Cir.1992), cert. denied, 62 U.S.L.W. 3248 (U.S.1993).

We affirm the convictions and sentence. We grant the Government’s motion to submit the case on the briefs because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.